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) AB 1522 (Atkins) Page 2 of ? 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 AB 1522 (Atkins) Page 3 of ? 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 AB 1522 (Atkins) Page 4 of ? 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 AB 1522 (Atkins) Page 5 of ? 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 AB 1522 (Atkins) Page 6 of ? 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. AB 1522 (Atkins) Page 7 of ? 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 AB 1522 (Atkins) Page 8 of ? 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 AB 1522 (Atkins) Page 9 of ? 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 AB 1522 (Atkins) Page 10 of ? 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. AB 1522 (Atkins) Page 11 of ? (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 AB 1522 (Atkins) Page 12 of ? 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) **************