BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1522|
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THIRD READING
Bill No: AB 1522
Author: Atkins (D)
Amended: 8/7/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-0, 7/3/12
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
ASSEMBLY FLOOR : 75-0, 4/12/12 - See last page for vote
SUBJECT : Family law: monetary awards
SOURCE : California District Attorneys Association
San Diego County District Attorney
DIGEST : This bill prohibits awards of spousal support,
medical, life or other insurance benefits, attorneys fees
as specified, or any community property interest in the
injured spouses retirement, pension, or insurance benefits
to individuals convicted of violent sexual felonies against
their spouses. This bill also requires a court, in
dissolution proceedings, to award attorney's fees and costs
to an injured spouse, as defined.
ANALYSIS : 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,
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medical, life or other insurance benefits or payments from
the injured spouse. (Family Code (FAM) Section 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 Section
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 Section 274)
Existing law creates a rebuttable presumption against an
award 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 Section 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 Sections 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 FAM 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
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property, whether community or separate, principal or
income. (FAM Section 2032)
This bill provides that 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% of the
community property interest in the retirement and
pension benefits of the injured spouse.
As used in this bill, "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.
As used in this bill, "injured spouse" means the spouse who
has been the subject of the violent sexual felony for which
the other spouse was convicted.
This bill amends FAM Section 4320 to specify that in
ordering spousal support under this part, the court shall
consider all of the following circumstances:
1. 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
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of the following:
A. 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.
B. 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.
2. 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.
3. 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.
4. The needs of each party based on the standard of living
established during the marriage.
5. The obligations and assets, including the separate
property, of each party.
6. The duration of the marriage.
7. 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.
8. The age and health of the parties.
9. Documented evidence of any history of domestic violence,
as defined in FAM Section 6211, between the parties,
including, but not limited to, consideration of
emotional distress resulting from domestic violence
perpetrated against the supported party by the
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supporting party, and consideration of any history of
violence against the supporting party by the supported
party.
10.The immediate and specific tax consequences to each
party.
11.The balance of the hardships to each party.
12.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 FAM Section 4336, a "reasonable period of
time" for purposes of this section generally shall be
1/2 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.
13. The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a
spousal support award in accordance with FAM Section
4325 or 4324.5.
14.Any other factors the court determines are just and
equitable.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/7/12)
California District Attorneys Association (co-source)
San Diego County District Attorney (co-source)
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
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National Association of Social Workers, California Chapter
San Diego County Board of Supervisors
Survivors in Action
Tri-County Crisis Center
Women of Worth
OPPOSITION : (Verified 8/7/12)
Association of Certified Family Law Specialists
ARGUMENTS IN SUPPORT : 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.
ARGUMENTS IN OPPOSITION : 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. ACFLS states, "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."
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ASSEMBLY FLOOR : 75-0, 4/12/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Conway, Davis, Dickinson, Donnelly, Eng,
Feuer, Fong, Fuentes, Furutani, Beth Gaines, Galgiani,
Gatto, Gordon, Gorell, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso,
Huffman, Jeffries, Jones, Knight, Lara, Logue, Bonnie
Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel Pérez, Portantino, Silva, Skinner,
Smyth, Solorio, Swanson, Torres, Valadao, Wagner,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Cedillo, Cook, Fletcher, Garrick,
Wieckowski
RJG:k 8/8/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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