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 
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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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