BILL ANALYSIS Ó
AB 1522
Page 1
Date of Hearing: March 20, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1522 (Atkins) - As Introduced: January 18, 2012
As Proposed to be Amended
SUBJECT : SEXUAL FELONY AGAINST A SPOUSE: forfeiture of
sUPPORT, RETIREMENT AND ATTORNEY'S FEES
KEY ISSUE : should an individual convicted of a violent Sexual
felony against his or her spouse forfeit ALL rightS to SPOUSAL
SUPPORT, attorney's fees, AND his or her COMMUNITY PROPERTY
INTEREST in THE INJURED SPOUSE'S retirement, pension AND
insurance benefits?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill arises from a San Diego case in which a husband, who
was convicted of a violent sexual felony against his wife and is
now serving a six year prison sentence, was still awarded
spousal support and attorney's fees in the couple's subsequent
divorce. Under current law, when someone is convicted of the
attempted murder of his or her spouse, or soliciting the murder
of that spouse, the injured spouse is entitled to all of the
community's interest in his or her retirement and pension
benefits, while the convicted spouse is prohibited from
receiving any spousal support, medical, life or other insurance
benefits from the injured spouse. This bill extends these
provisions to someone convicted of a violent sexual felony
against his or her spouse and additionally prevents a convicted
spouse from receiving attorney's fees.
This bill is co-sponsored by the San Diego District Attorney and
the California District Attorneys Association and supported by,
among others, the San Diego Board of Supervisors, and law
enforcement and victims groups. These organizations write that
by closing a loophole in the law, this bill will prevent victims
of violent sexual felonies from being re-victimized by being
forced to provide financial support to their abusers. The bill
is opposed by the Association of Certified Family Law
AB 1522
Page 2
Specialists which argues that judges should be given more
discretion to prevent unintended consequences when criminal
convictions start trumping the often difficult and fact
intensive decisions that must be made by family law judges. To
partially address this concern, the author has agreed to accept
amendments regarding future attorney's fees, which provide
extremely limited discretion to judges in future family law
litigation, to be used only in extraordinary circumstances when
compelled by the interests of justice and the best interests of
the children.
SUMMARY : Prohibits awards of attorney's fees, spousal support,
and community property interest in retirement, pension, or
insurance benefits to individuals convicted of violent sexual
felonies against their spouses. Specifically, this bill :
1)Provides that in addition to any other remedy, when a spouse
is convicted of a violent sexual felony against the other
spouse, defined as rape, sodomy, forced oral copulation,
forced sexual penetration, assault with intent to commit a
sexual offense, or voluntarily acting in concert to commit a
sexual offense, the injured spouse shall be entitled to:
a) An award of all of the community property interest in
the retirement and pension benefits of the injured spouse;
and
b) A prohibition of any temporary or permanent award for
spousal support, attorney's fees or medical, life, or other
insurance benefits or payments to the convicted spouse.
2)Expands the definition of "injured spouse" to include a spouse
who has been the subject of a violent sexual felony for which
the other spouse was convicted, whether or not actual physical
injury occurred. An injured spouse is entitled to an award of
reasonable attorney's fees and costs as a sanction.
3)Prohibits a spouse who is convicted of attempted murder or
solicitation of murder of the other spouse from receiving
attorney's fees from that injured spouse.
EXISTING LAW :
1)Provides, in addition to any other remedy authorized by law,
that when a spouse is convicted of attempting to murder the
other spouse, or of soliciting the murder of that spouse, the
AB 1522
Page 3
injured spouse is entitled to all the community property
interest in the retirement and pension benefits of the injured
spouse. (Family Code Section 782.5. Unless stated otherwise,
all further references are to the Family Code.)
2)Provides, in addition to any other remedy, when a spouse is
convicted of attempting to murder the other spouse or of
soliciting the murder of the other spouse, the convicted
spouse shall be prohibited from receiving any temporary or
permanent award of spousal support or medical, life or other
insurance benefits or payments from the injured spouse.
(Section 4324.)
3)Provides that if an injured spouse is entitled to a remedy
under #2, above, the injured spouse is entitled to an award of
reasonable attorney's fees and costs as a sanction. (Section
274.)
4)Prohibits a person who feloniously and intentionally kills
another from inheriting, either through a will or by intestate
succession, from that person. (Probate Code Section 250.)
5)When determining whether to award spousal support, requires
the court to consider a documented history of domestic
violence and a criminal conviction of an abusive spouse.
(Section 4320.)
6)Creates a rebuttable presumption against an award for
temporary or permanent spousal support to a spouse criminally
convicted of domestic violence against the other spouse within
five years of filing for dissolution of the marriage, or any
time thereafter. (Section 4325.)
COMMENTS : This bill arises from a San Diego case in which a
woman's husband was convicted of a felony sexual attack on her
and sentenced to six years in prison. The judge presiding over
the couple's subsequent divorce awarded the husband both spousal
support and attorney's fees because he had stayed home to take
care of the couple's children during the marriage and she had
been the primary income earner. This bill seeks to prevent this
from occurring in the future.
In support of the measure, the author states that:
AB 1522 ensures that victims of violent sexual felonies
AB 1522
Page 4
perpetrated by their spouses will never be forced to
financially support their abusers. It also ensures that
victims aren't liable for their abusers' legal bills.
Current law only prohibits awards of spousal support,
community property interest, or insurance benefits for the
solicitation or attempted murder of one's spouse.
This bill would expand that prohibition to include violent
sexual felonies. In the absence of an explicit statutory
prohibition, judges may continue awarding spousal support
and attorney's fees to perpetrators of violent sexual
felonies against their spouses.
By closing this loophole, AB 1522 ensures that victims of
violent sexual felonies perpetrated by their spouses will
not be re-victimized in court by being forced to provide
financial support to their abusers.
Current Protections for Victims of Attempted Murder or
Solicitation of Murder : Existing law provides that when an
individual is convicted of the attempted murder of his or her
spouse, or soliciting the murder of the other spouse, the
injured spouse is entitled to an award of all of the community
property interest in the retirement and pension benefits of the
injured spouse. In addition, the convicted spouse is prohibited
from receiving a temporary or permanent award for spousal
support, medical, life or other insurance benefits or payments
from the injured spouse. The injured spouse is also entitled to
reasonable attorney fees and costs.
Extension of Protections to Victims of Violent Sexual Felonies
Perpetuated by their Spouse:
This bill extends these provisions to spouses convicted of the
following violent sexual felonies:
1. Rape, sodomy, oral copulation or sexual penetration
when the act is accomplished against the victim's will by
means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or
another person.
2. Assault with intent to commit rape, sodomy, oral
copulation, or voluntarily acting in concert with another
to commit rape, spousal rape, or sexual penetration by
force or without consent.
AB 1522
Page 5
3. Voluntarily acting in concert with another person, by
force or violence and against the will of the victim,
committing rape, spousal rape, or sexual penetration by
force or without consent, either personally or by aiding
and abetting the other person.
A More Detailed Account of the Case Leading to This Bill : The
impetus for this bill was a 2008 case in which a woman was
violently sexually assaulted by her husband. The husband was
convicted of felony forced oral copulation against his wife, and
sentenced to six years in prison.
In the subsequent divorce proceedings, the wife was ordered to
pay $1000 per month spousal support and $47,000 in attorney's
fees. The wife had been the primary income-earner, making over
$11,000 a month while her husband, unemployed since the birth of
the couple's first son, made roughly $400 a month. The judge
considered this income disparity as well as the 12-year duration
of the marriage when awarding the husband spousal support. The
judge stayed the spousal support award while the husband is in
prison.
Current Factors for Consideration of the Award of Spousal
Support : When making a determination of spousal support, the
court is required to consider any documented history of domestic
violence and the criminal conviction of an abusive spouse.
Additionally, there is a rebuttable presumption against the
temporary or permanent award of spousal support where there is a
criminal conviction for an act of domestic violence by one
spouse against another.
However a judge still has discretion to award support to a
spouse convicted of abuse. Judges are given broad discretion in
the award of spousal support because of the complexity of the
factors to be considered and the individual circumstances of the
parties involved. Other factors considered by the court
include: the earning capacity of each party taking into account
the extent to which the supported party's earning capacity is
impaired by periods of unemployment incurred during the marriage
to permit the supported party to devote time to domestic duties,
the ability of the supported party to engage in gainful
employment without unduly interfering with the interests of
dependent children in the custody of that party, and the balance
of the hardships to each party. This bill removes all
discretion when one spouse is convicted of a violent sexual
AB 1522
Page 6
felony against the other spouse.
Current Law Regarding Attorney's Fees Awards in Family Law :
Historically, men were the main bread winners for their
families, while women stayed home and raised the children. If a
man chose to leave and initiate divorce proceedings, he
effectively removed all support from his family and prevented
his wife from being able to hire an attorney and represent her
interests and the children's interests. In recent decades, this
historical approach to childrearing has altered such that it is
increasingly the case that women are in the workplace and often
the higher earners in the family. To ensure that the at-home
parent, regardless of gender, is not unfairly prevented needed
assistance from the family's resources to hire an attorney,
California law therefore appropriately provides that attorney's
fees in family law are generally needs based. If one spouse can
afford to pay for counsel for both spouses and the other cannot
afford to hire his or her own attorney, the court will generally
award needs based attorney's fees to the other spouse. For most
cases, this helps ensure a level playing field and appropriate
advocacy for both parties, so that the court is able to reach a
just result.
This bill seeks to alter the traditional needs based approach to
attorney's fees in the egregious cases specified.
Additionally, one spouse may be awarded attorney's fees against
the other as a sanction for misconduct. Current law
specifically provides that a spouse who is convicted of
attempted murder or soliciting the murder of the other spouse is
required to pay the injured spouse attorney's fees as a
sanction.
Prohibiting Attorney's Fees for the Convicted Spouse While
Entitling Fees and Costs to the Injured Spouse : This bill both
entitles an injured spouse to an award of reasonable attorney's
fees and costs as a sanction, and prevents the court from
awarding needs-based fees to the convicted spouse. Currently, a
judge is not prohibited from awarding needs-based attorney's
fees to spouses convicted of attempted murder, solicitation of
murder, or a violent sexual felony. This bill prohibits an
award of attorney's fees for a conviction for any of these
offenses. Additionally, this bill extends the attorney's fees
sanction provision to include violent sexual felonies against
the other spouse.
AB 1522
Page 7
Consequences of Attorney's Fee Prohibition on Future Unrelated
Actions : Prohibition of an award of attorney's fees for a
convicted spouse could have unintended consequences if the
prohibition extends to future actions not involving the
immediate dissolution of the marriage or the limitations of
awards or support imposed by this bill. For example, it is
conceivable that a convicted spouse may serve his or her time
and be reformed, but now the injured spouse is, for whatever
reason, no longer a fit parent to their children. The convicted
spouse may come to court to seek a change of custody to protect
the children from harm. Under the bill as drafted, a judge
would be prohibited from awarding attorney's fees in this case,
even if they are warranted.
In order to ensure children can be protected and justice can be
achieved, the author has agreed to the following extremely
narrow amendment for Section 4324:
(a) In addition to any other remedy authorized by law, when a
spouse is convicted of attempting to murder the other spouse, as
punishable pursuant to subdivision (a) of Section 664 of the
Penal Code, or of soliciting the murder of the other spouse, as
punishable pursuant to subdivision (b) of Section 653f of the
Penal Code, or of a violent sexual felony against the other
spouse as defined in paragraphs (3), (4), (5), (11), and (15) of
subdivision (c), with the exception of assault with intent to
commit mayhem, and paragraph (18) of subdivision (c) of Section
667.5 of the Penal Code, the injured spouse shall be entitled to
a prohibition of any temporary or permanent award for spousal
support, attorney's fees , except as provided in subdivision (c) ,
or medical, life, or other insurance benefits or payments from
the injured spouse to the other convicted spouse.
(b) As used in this section, "injured spouse" means the spouse
who has been the subject of the attempted murder or , the
solicitation of murder, or the violent sexual felony for which
the other spouse was convicted, whether or not actual physical
injury occurred.
(c) Notwithstanding (a), a court may, in any hearing regarding
child custody, visitation or child support subsequent to the
spouse's conviction as described in (a), order the injured
spouse to pay attorney's fees, under those extraordinary
circumstances where the interest of justice and the best
interests of the child or children compel such an order, and the
AB 1522
Page 8
court states its reasons for the order in writing or on the
record, provided that the convicted spouse has already completed
the prison term for which he or she was sentenced.
Technical Amendment : In order to better clarify the felonies to
which this bill applies, the author agrees to the following
technical amendments on page 2, lines 8-11 and lines 23-26:
of a violent sexual felony against the other spouse as defined
in paragraphs (3), (4), (5), (11), and (15) (with the exception
of assault with intent to commit mayhem) of subdivision (c),
with the exception of assault with intent to commit mayhem , and
paragraph (18) of subdivision (c) of Section 667.5 of the Penal
Code, the
ARGUMENTS IN SUPPORT : In support, the bill's sponsor, the San
Diego District Attorney, states:
Victims of violent sex crimes already suffer physical
trauma, fear, and an assault on their privacy and dignity.
To require victimized spouses to also pay their abusers
alimony or to give them a share of their pensions is
outrageous . . . ƯAB 1522] will ensure that victims of
violent sexual felonies by their spouses will not be
re-victimized in court by being forced to provide financial
support to their convicted abusers.
Adds the California Coalition Against Sexual Assault: "Someone
who rapes their spouse should not then be able to turn around
and make their victim support them following a divorce just
because the victim makes more money than the rapist."
The California District Attorneys Association concurs and is a
co-sponsor of the bill because it "corrects this clear societal
infirmity and stands up for crime victims."
ARGUMENTS IN OPPOSITION : The Association of Certified Family
Law Specialists (ACFLS) opposes the bill, arguing that:
There are many fact scenarios which can be imagined where
the implementation of this proposed bill could result in an
unjust outcome. It is possible that a spouse will plead
guilty to one of the crimes listed in order to save the
marriage early in the marriage when there is little to no
community property, but the marriage may continue on for
AB 1522
Page 9
twenty five more years. Based upon this statute, the
convicted spouse would be precluded from his or her share
of community property acquired long after the bulk of the
community property was earned. In addition to the concern
relating to possible scenarios where there would be
unintended consequences in implementation, there is further
fear that the list of crimes will continue to grow in the
coming years, becoming less and less relevant to the remedy
proposed. The Family Law courts are not criminal courts
and the legislature should not be creating that prospect.
The criminal law courts should remain in charge of
prosecuting and punishing where the evidence warrants such
actions.
ACFLS also objects to the elimination of spousal support without
any court discretion to order otherwise, writing "If the
legislature feels that these crimes need to be listed out
specifically then they can be added to section 4325, which
provides for a rebuttable presumption against awarding spousal
support. ACFLS feels that these crimes could be considered as a
factor in determining support issues, but should not necessarily
be a black and white rule; thereby obliterating any discretion
by the court to consider mitigating factors or circumstances."
ACFLS also opposes the prohibition on attorney's fees, discussed
above, writing that the bill "seems to prohibit the court to
consider an award of attorney's fees regarding all issues in the
matter. The discretion of the court should not be limited on
the issue of attorney's fees. As indicated herein, there are
certainly circumstances which can be envisioned where the
court's discretion to consider an award of attorney's fees may
be appropriate."
Pending Legislation : SB 966 (Strickland) prohibits any
temporary or permanent award of spousal support, or medical,
life or insurance benefits or payments to individuals convicted
of violent sexual felonies against their spouses. SB 966
differs from AB 1522 by excluding assault with intent to commit
a sexual offense from the list of violent sexual felonies.
AB 1522
Page 10
REGISTERED SUPPORT / OPPOSITION :
Support
San Diego District Attorney (sponsor)
California District Attorneys Association (co-sponsor)
California Coalition Against Sexual Assault
California Communities United Institute
California State Sheriffs' Association
Crime Victims Action Alliance
Hetty's Haven
San Diego County
San Diego County Board of Supervisors
San Diego County Board of Supervisors Chairman Ron Roberts
Survivors in Action
Tri-County Crisis Center
Women of Worth
One individual
Opposition
Association of Certified Family Law Specialists
Analysis Prepared by : Leora Gershenzon and Dalea Fong / JUD. /
(916) 319-2334