BILL ANALYSIS Ó
AB 1727
Page 1
Date of Hearing: March 20, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1727 (Silva) - As Amended: March 15, 2012
PROPOSED CONSENT
SUBJECT : SUPPORT ORDERS: EX PARTE TERMINATION OF WAGE
ASSIGNMENT
KEY ISSUE : SHOULD A SPOUSAL OR CHILD SUPPORT OBLIGOR, WHOSE
SUPPORT IS COLLECTED THROUGH A WAGE ASSIGNMENT, BE PERMITTED TO
SEEK EX PARTE RELIEF TERMINATING THE WAGE ASSIGNMENT FOR LIMITED
REASONS, INCLUDING THE DEATH OF THE SUPPORTED PARTY, WHETHER THE
FORMER SPOUSE OR THE CHILD, OR THE EMANCIPATION OF THE CHILD?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the Conference of
California Bar Associations, provides an expedited method of
terminating a wage assignment for child or spousal support if
the support obligee - the spouse in the case of spousal support
and the child in the case of child support - has died, the child
has emancipated, there is no longer a current support order, or
for other limited and specified reasons. Current law allows the
obligor to file a motion to terminate the wage assignment in
these situations, but that particular code provision does not
explicitly provide for an ex parte request to terminate the wage
assignment, which would shorten the time needed to obtain the
order and terminate the wage assignment. While some courts
allow ex parte applications in these instances, according to the
sponsor, others do not. This bill rectifies this by allowing
for ex parte requests for relief of support wage assignments in
these specified and limited situations. There is no known
opposition.
SUMMARY : Allows a support obligor to seek ex parte relief to
terminate a wage assignment for support if past due support has
been paid in full, including any interest due, and if any of the
following conditions exist:
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1)With respect to spousal support, the death or remarriage of
the spouse;
2)With respect to child support, the death or emancipation of
the child;
3)There is no longer a current support order;
4)A previous stay of wage assignment was improperly terminated,
as specified; or
5)The employer or the child support agency has been unable to
deliver the support payments for at least six months due to
the obligee's failure to notify them of his or her change of
address.
EXISTING LAW :
1)Authorizes the court, in a judgment of dissolution of marriage
or legal separation, to order one party to pay spousal support
to the other party in an amount and for a duration that the
court deems just and reasonable based on factors, including
the standard of living established during the marriage.
(Family Code Section 4330. All further statutory references
are to this code unless otherwise noted.)
2)Imposes on parents a duty to support an unmarried child who
has not attained the age of 18 years. For a child who has
attained the age of 18 years, but is still a full-time high
school student and is not self-supporting, the duty of support
is extended until the time the child completes the 12th grade
or attains the age of 19 years, whichever occurs first.
(Section 3901.)
3)Except as otherwise agreed by the parties in writing, the
obligation of a party subject to a spousal order terminates
upon the death of either party or the remarriage of the
supported party. (Section 4337.)
4)Provides that an order modifying or terminating a support
order may be made retroactive to the date of the filing of the
notice of motion or order to show cause to modify or
terminate, or to any subsequent date, as provided. (Section
3653.)
5)Provides that the court shall terminate a wage assignment for
collection of child or spousal support if all past due support
has been paid in full and one of the following has occurred:
(a) For spousal support, death or remarriage of the supported
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spouse; (b) for child support, death or emancipation of the
supported child; (c) there is good cause to terminate the
assignment order, as specified; (d) there is no longer a
current support order; (e) a previous stay of the wage
assignment was improperly terminated, as specified; or (f) the
employer or the child support agency has been unable to
deliver the support payments for at least six months due to
the obligee's failure to notify them of his or her change of
address. (Section 5240.)
6)Governs rules with respect to civil ex parte applications,
including that the requesting party must submit the request in
writing and must notify all parties no later than 10:00 a.m.
on the court day before the ex parte appearance, absent a
showing of exceptional circumstances that justify a shorter
time for notice. (Cal. R. Ct., Rule 3.1200 et seq.)
COMMENTS : This non-controversial bill, sponsored by the
Conference of California Bar Associations, provides an expedited
method of terminating a wage assignment for child or spousal
support if the support obligee - the spouse in the case of
spousal support and the child in the case of child support - has
died, the child has emancipated, there is no longer a current
support order, the termination of a previous wage assignment was
improperly stayed, or the obligated party has failed to update
their address and has not been located for at least six months.
Under current law, a support order terminates, by operation of
law, on death of the supported spouse or child, or emancipation
of the child. If a wage assignment is in place, however, the
wage assignment must still be terminated or the obligor's
employer will continue deducting the obligor's wages and paying
the support, even if the underlying support obligation has
terminated as a matter of law.
Current law allows the obligor to file a motion to terminate the
wage assignment, but that particular section does not explicitly
provide for an ex parte request to terminate the wage
assignment, which would shorten the time needed to obtain the
order and terminate the wage assignment. While some courts
allow ex parte applications in these instances, according to the
sponsor, others do not.
In support of the bill, the author writes:
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AB 1727 is needed because it provides the obligor an
efficient and less costly way to terminate support when the
obligee/supported spouse has passed away.
Although the Family Code already provides that the death of
the obligee/supported spouse terminates a support order, an
employer cannot cease taking funds from an employee
pursuant to an assignment order until the employer has
received a termination order from the court. Even though
courts may allow a motion to terminate an assignment ex
parte, some courts will not allow an ex parte proceeding
because the Family Code does not specifically allow it.
Currently, the code only specifically permits termination
orders to be issued "upon filing and service of a motion
and a notice of motion by the obligor/supporting spouse."
This process can take weeks or months, during which time
more money can be taken from the obligor/supporting
spouse's check, and perhaps even transferred automatically
to the bank account of the deceased spouse, from which it
is difficult or impossible to get it back.
Existing law does not take into account the situation where
the obligee spouse has passed away, thereby obviating the
necessity for a noticed motion, as well as the emergency
situation where money is being taken from the obligor's
paycheck and electronically transferred to the
obligee/supported spouse's bank account, in which case the
obligor may never get that money back.
Even an ex parte order still requires that notice be given to
the other party. California Rules of Court require that the
person requesting the immediate relief notify all parties no
later than 10:00 a.m. on the court day before the ex parte
appearance, absent a showing of exceptional circumstances that
justify a shorter time for notice. The exceptional
circumstances could be, for example the death of the supported
party.
It is important to keep in mind that this bill simply
appropriately allows a court to terminate, ex parte, a wage
assignment if certain events have occurred. This bill does not
in any way affect the underlying support obligation that gave
rise to the wage assignment. That order remains in effect
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unless changed or terminated by the court or by operation of
law.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334