BILL ANALYSIS Ó
AB 1522
Page 1
ASSEMBLY THIRD READING
AB 1522 (Atkins)
As Amended March 26, 2012
Majority vote
JUDICIARY 7-1
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|Ayes:|Feuer, Wagner, Atkins, | | |
| |Dickinson, Huber, Jones, | | |
| |Monning | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wieckowski | | |
| | | | |
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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
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attorney's fees from that injured spouse, except as provided.
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
injured spouse is entitled to all the community property
interest in the retirement and pension benefits of the injured
spouse.
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.
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.
4)Prohibits a person who feloniously and intentionally kills
another from inheriting, either through a will or by intestate
succession, from that person.
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.
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.
FISCAL EFFECT : None
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
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been the primary income earner. This bill seeks to prevent this
from occurring in the future.
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.
This bill extends these provisions to spouses convicted of the
following violent sexual felonies: rape, sodomy, oral copulation
or sexual penetration, assault with intent to commit rape,
sodomy, oral copulation, or 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.
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. This bill removes all
discretion when one spouse is convicted of a violent sexual
felony against the other spouse.
Currently an injured spouse is entitled to an award of
reasonable attorney's fees and costs as a sanction against a
spouse convicted of attempted murder or solicitation of murder.
Additionally, 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
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for any of these offenses. Additionally, this bill extends the
attorney's fees sanction provision to include violent sexual
felonies against the other spouse.
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. This bill provides judges a very limited
amount of discretion to award fees in extraordinary cases when
the interest of justice and the best interest of the child
compel such an order.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0003172