BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1522 (Atkins)
As Amended March 26, 2012
Hearing Date: July 3, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Family Law: Monetary Awards
DESCRIPTION
This bill would prohibit awards of spousal support, medical,
life or other insurance benefits, attorney's fees as specified,
or any community property interest in the injured spouse's
retirement, pension, or insurance benefits to individuals
convicted of violent sexual felonies against their spouses.
This bill would also require a court, in dissolution
proceedings, to award attorney's fees and costs to an injured
spouse, as defined.
BACKGROUND
This bill arises from a 2010 case in which a woman, whose
husband was convicted of sexually assaulting her, was ordered to
pay spousal support and reportedly her husband's legal fees in
the couple's subsequent divorce.
Under existing law, when a person is convicted of the attempted
murder or solicitation of murder of his or her spouse, the
convicted spouse is not entitled to any spousal support,
medical, life or other insurance from the injured spouse.
Similarly, when a spouse is convicted of domestic violence
within five years prior to filing for divorce, a presumption is
created against an award for spousal support to the convicted
spouse. Therefore, unlike cases involving attempted murder,
cases involving recent domestic violence require a judge's
discretion in making awards of spousal support and attorney's
fees. As violent sexual felonies are encompassed in the
(more)
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definition of domestic violence, in the case noted above, the
court was required to consider a variety of factors in awarding
spousal support and attorney's fees. (See Comment 2). An
article from the New York Post pointed out the dilemma the
presiding judge, Judge Pollack, faced in making these awards:
Pollack noted when he first ruled last year that California
family law dictates alimony is not justified in cases where a
person attempts to murder a spouse. But, because the law
spells out no other crimes, Pollack said he was using
judicial discretion to rule against Crystal Harris.
"I can't look at a 12-year marriage where one side is making
$400 a month, and the other side is making over $11,000, and
say no spousal support," he said in court. (Massarella,
A$$ault in her wounds, N.Y. Post, (Dec. 4, 2011) p.1.)
This bill would provide that upon filing for dissolution, a
victim spouse of a violent sexual felony would not be forced to
pay spousal support or attorney's fees, as specified, to the
convicted spouse. This bill would also award all community
property interest in retirement and pension benefits, and
attorney's fees to the injured spouse.
CHANGES TO EXISTING LAW
Existing law provides, in addition to any other remedy, when a
spouse is convicted of attempting to murder the other spouse, or
soliciting the murder of the other spouse, the convicted spouse
shall be prohibited from receiving any temporary or permanent
award of spousal, medical, life or other insurance benefits or
payments from the injured spouse. (Fam. Code Sec. 4324.)
Existing law 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. (Fam. Code Sec. 782.5.)
Existing law provides that when a spouse is convicted of
attempting to murder the other spouse, and the injured spouse is
entitled to a remedy, the injured spouse is entitled to an award
of reasonable attorney fees and costs. (Fam. Code Sec. 274.)
Existing law creates a rebuttable presumption against an award
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for temporary or permanent spousal support to a spouse convicted
of domestic violence against the other spouse within five years
of filing for a dissolution of the marriage, or any time
thereafter. (Fam. Code Sec. 4325.)
Existing law requires the court, when determining whether to
award spousal support, to consider a documented history of
domestic violence and any criminal convictions of an abusive
spouse. (Fam. Code Secs. 4320 and 4325.)
Existing law authorizes the court to make an award of attorney's
fees and costs that are just and reasonable under the relative
circumstances of the respective parties. In determining what is
just and reasonable, the court shall consider financial
resources available to each party, and the circumstances of the
respective parties described in Section 4320. The fact that the
party requesting an award of attorney's fees and costs has
resources from which the party could pay the party's own
attorney's fees and costs is not itself a bar to an order that
the other party pay part or all of the fees and costs requested.
Financial resources are only one factor for the court to
consider in determining how to apportion the overall cost of the
litigation equitably between the parties under their relative
circumstances. The court may order payment of an award of
attorney's fees and costs from any type of property, whether
community or separate, principal or income. (Fam. Code Sec.
2032.)
This bill would provide that when a spouse is convicted of a
violent sexual felony, as specified, against the other spouse,
the convicted spouse shall be prohibited from receiving any
temporary or permanent award of spousal, medical, life or other
insurance benefits or payments, or attorney's fees from the
injured spouse.
This bill would award all of the injured party's community
property interest in the retirement and pension benefits to the
injured spouse.
This bill would define violent sexual felony as rape, sodomy,
forced oral copulation, forced sexual penetration, assault with
the intent to commit a sexual offense, or voluntarily acting in
concert to commit a sexual offense.
This bill would include in the definition of "injured spouse" a
spouse who has been the subject of a violent sexual felony for
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which the other spouse was convicted, whether or not actual
physical injury occurred.
This bill would entitle an injured spouse to an award of
reasonable attorney's fees and costs as a sanction.
This bill would prohibit 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, except in
hearings regarding child custody, visitation, or support where
the court finds that in the interest of justice and the bests
interests of the child, an award of attorney's fees must be
awarded to the convicted spouse.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
AB 1522 ensures that victims of violent sexual felonies
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.
2.Prohibition of spousal support award to convicted spouse
This bill would prohibit an award of spousal support to a spouse
convicted of the following violent sexual felonies against
spouses, as specified. (See Changes to Existing Law.) This is
an exception to the general policy of "no fault" divorce in
California. A no fault divorce policy allows either party to
file for a dissolution without the need to prove fault by the
other spouse. Therefore, courts do not punish a party for wrong
doing, such as an affair, by awarding the other more spousal
support or community property. Thus, in California, spousal
support is awardable without regard to the merits or procedural
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posture of the case. (See Marriage of Askmo (2000) 85 Cal.4th
1032.)
Instead, courts order spousal support in an amount, and for a
period of time that the court determines is just and reasonable,
based on the standard of living established during the marriage.
(Fam. Code Sec. 4330(a).) In making spousal support awards, the
court is required to consider, among other factors, the
marketable skills of each party, the parties' ability to pay
spousal support, the needs of each party, the assets of each
party, a history of domestic violence including convictions
resulting from that violence, and the ability of each party to
engage in employment considering the interests of dependent
children. (Fam. Code Sec. 4320.) As a result, courts are given
broad discretion in determining spousal support awards because
of the complexity of the factors that must be considered and the
individual circumstances of the parties and families involved.
Current law restricts a court's ability to award spousal support
in two situations. First, when a spouse is convicted of
attempted murder of a spouse, no award of spousal support is
available to the convicted spouse. (Fam. Code Sec. 4324.)
Additionally, when a spouse is convicted of domestic violence
within five years prior to filing for dissolution, a presumption
is created against an award of spousal support to the convicted
spouse. (Fam. Code Sec. 4325.)
In opposition to this bill, the Association of Certified Family
Law Specialists (ACFLS) argues for judicial discretion when
determining spousal support awards turning on convictions of
violent sexual felonies. Thus, the ACFLS would treat violent
sexual felonies akin to instances of domestic violence, and not
attempted murder:
Certainly these crimes Ýviolent sexual felonies] would be
considered a conviction of domestic violence and are covered
in Family Code section 4325. 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
deterring 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.
Spousal sexual assault clearly falls under the umbrella of
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domestic violence which covers a range of behavior from placing
a person in reasonable apprehension of imminent serious bodily
injury to intentionally or recklessly causing bodily injury.
(Fam. Code Secs. 6200-6203.) Yet arguably, violent sexual
felonies are distinguishable from domestic violence. Families
are dynamic; there may be circumstances that give rise to temper
or emotions, and undoubtedly in some situations, provocation may
occur. In others, alleged abusers may reasonably claim
self-defense. In fact, existing law authorizes the court to
consider documented evidence of a convicted spouse's history as
a victim of domestic violence perpetrated by the other spouse,
or any other factors the court deems just and equitable, as
conditions for rebutting the presumption against awarding
spousal support to a spouse convicted of domestic violence.
(Fam. Code Sec. 4325(b).) Domestic violence is not excusable,
but clearly, as individual cases arise, grey areas exist where a
judge's discretion may be necessary.
For a court to approach the violent sexual acts listed under
this bill and the entire spectrum of domestic violence actions
in the same manner could arguably lead to undesirable results.
The catalyst for this bill was a case in which a spouse was
violently sexually assaulted by her husband, who was sentenced
to six years in prison for forced oral copulation against his
wife. In dissolution proceedings, the wife, who had been the
primary income earner, was ordered to pay spousal support to her
husband who had been largely unemployed for nearly six years.
The judge, taking into consideration the income disparity, and
the 12-year duration of the marriage, awarded the wife to pay
$1,000 a month to the husband. The judge stayed this order of
spousal support while the husband is in prison.
From a policy standpoint, victims of abuse should be encouraged
turn to the courts to secure safety for themselves and their
children, and not be discouraged from filing for dissolution
because it is unclear how the court will award spousal support
and divide community property interests. Yet limiting the
court's discretion to award spousal support to convicted spouses
could arguably lead to unjust results in a number of situations
as well. It is possible that a convicted spouse and a victim
spouse will opt to continue the marriage after the convicted
spouse's sentence is served. In the event that the couple files
for dissolution 15 years later, for reasons separate from the
past conviction, a court should not be precluded from using
discretion to create a fair and appropriate award of spousal
support.
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The author's amendments in Comment 5 would address this issue by
prohibiting a court from ordering the victim to pay spousal
support if either party files for dissolution within five years
of the conviction of the violent sexual felony-any
incarceration, probation, or parole assigned for the violent
sexual felony would toll that five year period. The amendments
would also authorize a court to consider a conviction for a
violent sexual felony against a spouse beyond that five year
period when determining what is a fair and just award of spousal
support.
3.Prohibition of attorney's fees to convicted spouse
Under existing law, need-based awards of attorney fees are a
mandatory consideration for courts, and judges have discretion
to award fees as a sanction. This bill would prohibit both a
spouse convicted of a violent sexual felony from receiving
attorney's fees and award the injured spouse attorney's fees as
a sanction. This provision would be subject to a narrow
exception relating to child custody, visitation, support, and
the best interests of the child(ren) involved.
Need-based awards are based on a general policy that family
courts should be accessible to both spouses, regardless of who
is the primary-income earner. Therefore, if one spouse can
afford to pay for counsel and the other cannot, the court will
generally award need-based attorney's fees to the other spouse.
However, courts are required to look at the totality of the
circumstances in creating fee awards, including a history of
domestic violence and past convictions. The code further
provides that "the fact that the party requesting an award of
attorney's fees and costs has resources from which the party
could pay the party's own attorney's fees and costs is not
itself a bar to an order that the other party pay part or all of
the fees and costs requested. Financial resources are only one
factor for the court to consider in determining how to apportion
the overall cost of the litigation equitably between the parties
under their relative circumstances." (Fam. Code Sec. 2032.)
A black-line rule denying one spouse attorney's fees based on
past behavior, while granting them to another, is arguably in
opposition to this State's policies which create equal access to
the family courts. As previously noted, California has a
no-fault divorce policy ensuring that couples may file for
dissolution and rely on the court to balance factors and take
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into account individual circumstances in dividing property,
rights, and responsibilities between the parties. While the
impetus for this bill, a case where a victim was ordered to pay
spousal support and attorney's fees to her convicted husband,
arose under existing law, it appears to be a unique case.
Prohibiting courts from using discretion in future cases could
upset a balance in where equity is achieved for many divorced
couples. Furthermore, as written, this bill would prohibit a
court from using discretion as to attorney's fees in cases of
attempted murder as well as violent sexual felonies, which is
arguably outside the scope of this bill.
Victim spouses should not be discouraged from filing for
dissolution because they are unsure how a court will award
attorney's fees. However, removing a court's ability to use
discretion in a family law setting regarding attorney fees may
have damaging and unintended consequences for many families. To
address those issues, the author's amendments in Comment 5 would
require, if a petition for dissolution was filed within the
specified five year period, a court to order attorney's fees and
costs incurred by the parties to be paid out of the community
estate, where economically feasible. In the event that the
community estate is not sufficient to cover attorney's fees and
costs, the suggested amendments would provide that an injured
spouse shall not be required to pay the attorney fees for the
convicted spouse, thereby giving the court some discretion in
how to fashion these awards. These amendments would also
authorize a court to take into account a conviction for a
violent sexual felony when fashioning attorney fee awards in the
event that a petition for dissolution is filed beyond that five
year period.
4.Legal date of separation
Existing law provides that all property, whether real or
personal, acquired by a married person during the marriage while
domiciled in this state is community property, and that absent
prior agreement, upon dissolution, the court must divide the
community estate equally. (Fam. Code Secs. 760, 2550.) This
policy was established to recognize the equal contributions of
both spouses to the family unit, and historically has provided
for an arguably more just division of property for families
where one spouse earns more income than the other.
The suggested amendments would provide that the legal date of
separation shall be the date of the incident giving rise to the
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conviction, or earlier, if the court finds circumstances that
justify an earlier date. As a result, the injured spouse would
be entitled to his or her earnings, investments, and other
property acquired after the incident giving rise to the
conviction, if dissolution is filed within the specified time
period. Arguably, this provision would further protect an
injured spouse and promote independence from the convicted
spouse by classifying all acquired property after the date of
the violent sexual felony as his or her separate property.
5.Author's Amendments:
Page 2, strike lines 1 through 34, inclusive.
Strike page 3.
Page 2, line 1, insert "SECTION 1. Section 4324.5 is added to
the Family Code.
a) Section 4324.5. In any proceeding for dissolution of
marriage where there is a criminal conviction for a violent
sexual felony perpetrated by one spouse against the other
spouse and the petition for dissolution is filed within
five years following the conviction and any time served in
custody, on probation, and on parole, the following shall
apply:
(1) an award of spousal support to the convicted
spouse from the injured spouse is prohibited;
(2) where economic circumstances warrant, the
court shall order the attorney fees and costs incurred
by the parties to be paid from the community assets.
The injured spouse shall not be required to pay any
attorney's fees of the convicted spouse out of the
injured spouse's separate property.
(3) the date of separation shall be the date of
the incident giving rise to the conviction, or
earlier, if the court finds circumstances that justify
an earlier date; and
(4) the injured spouse shall be entitled to 100
percent of the community property interest in the
retirement and pension benefits of the injured spouse.
a) As used in this section, "violent sexual felony" shall
include those listed in paragraphs (3), (4), (5), (11), and
(18) of subdivision (c) of Section 667.5 of the Penal Code.
b) As used in this section, "injured spouse" means the
spouse who has been the subject of the violent sexual
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felony for which the other spouse was convicted.
SEC 2. Section 4320 of the Family Code is amended to read:
4320. In ordering spousal support under this part, the court
shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party
is sufficient to maintain the standard of living
established during the marriage, taking into account all of
the following:
(1) The marketable skills of the supported party; the job
market for those skills; the time and expenses required for
the supported party to acquire the appropriate education or
training to develop those skills; and the possible need for
retraining or education to acquire other, more marketable
skills or employment.
(2) The extent to which the supported party's present or
future earning capacity is impaired by periods of unemployment
that were incurred during the marriage to permit the supported
party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a
license by the supporting party.
(c) The ability of the supporting party to pay spousal
support, taking into account the supporting party's earning
capacity, earned and unearned income, assets, and standard of
living.
(d) The needs of each party based on the standard of living
established during the marriage.
(e) The obligations and assets, including the separate
property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of
dependent children in the custody of the party.
(h) The age and health of the parties.
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(i) Documented evidence of any history of domestic violence,
as defined in Section6211, between the parties, including, but
not limited to, consideration of emotional distress resulting
from domestic violence perpetrated against the supported party
by the supporting party, and consideration of any history of
violence against the supporting party by the supported party.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting
within a reasonable period of time. Except in the case of a
marriage of long duration as described in Section 4336, a
"reasonable period of time" for purposes of this section
generally shall be one-half the length of the marriage.
However, nothing in this section is intended to limit the
court's discretion to order support for a greater or lesser
length."
(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal
support award in accordance with Section 4325 or 4324.5 .
(n) Any other factors the court determines are just and
equitable."
Support : CALEGISLATION; California Coalition Against Sexual
Assault; California Communities United Institute; California
Federation of Republican Women; California Partnership to End
Domestic Violence; California State Sheriffs' Association;
County of San Diego; Crime Victims Action Alliance; Crime
Victims United; Hetty's Haven; Los Angeles District Attorney's
Office; National Association of Social Workers, California
Chapter; San Diego County Board of Supervisors; Survivors in
Action; Tri-County Crisis Center; Women of Worth
Opposition : Association of Certified Family Law Specialists
HISTORY
Source : San Diego County of the District Attorney; California
District Attorneys Association
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Related Pending Legislation : SB 966 (Strickland, 2012) would
provide that in dissolution proceedings, where a spouse has been
convicted of a violent sexual felony against the other spouse,
the convicted spouse would not be entitled to an award of
spousal support, medical, life or other insurance benefits, or
attorney's fees. At the direction of the author, this bill was
not set for hearing.
Prior Legislation :
AB 2674 (Block, Chapter 65, Statutes of 2010) prohibits an award
of spousal support to a spouse convicted of soliciting the
murder of the other spouse, as specified.
AB 16 (Rainey, Chapter 364, Statutes of 1995) provides that when
a spouse is convicted of attempting to murder the other spouse,
as specified, the injured spouse shall be entitled to 100
percent of the community property interest in his or her
retirement and pension benefits, and a prohibition of specified
support or insurance benefits from the injured spouse to the
other spouse, as specified.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 7, Noes 1)
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