BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 414 (Fox)
As Amended May 15, 2014
Hearing Date: June 10, 2014
Fiscal: No
Urgency: Yes
NR
SUBJECT
Spousal support: modifications.
DESCRIPTION
This bill would provide that in a proceeding in which a spousal
support order exists or the court has retained jurisdiction over
a support order, and a companion child support order is in
effect, the termination of child support by operation of law
shall constitute a change of circumstances that may be the basis
for a request for modification of spousal support.
This bill would require a party to file a motion to modify
spousal support within six months from the day the spousal
support terminates, would allow either party to require the
appointment of a vocational training counselor, and would exempt
marital settlement agreements.
BACKGROUND
Under current law, child support obligations are calculated
using mandatory statewide guidelines. (Fam. Code Sec. 4055.)
Spousal support, on the other hand, is calculated using the
factors enumerated in Family Code Section 4320. Among the
factors considered are the ability of the supporting party to
pay spousal support and the obligations and assets of each
party. (Fam. Code Sec. 4320(c) & (f).) Assuming continuing
spousal support jurisdiction, a spousal support modification may
be granted only if the party seeking the modification shows a
material change of circumstances since the most recent order.
(In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572, 575; In
re Marriage of Bower (2002) 96 Cal.App.4th 893, 899.)
(more)
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Prior to 2008, the termination of the child support order by
operation of law did not automatically allow the party who had
received the child support to go back to court to seek either
new spousal support or a modification of existing spousal
support. (In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th
1131.) However, in 2007 the Legislature enacted SB 415 (Harman,
Ch. 247, Stats. 2007), which provided that in a proceeding in
which a spousal support order exists and a companion child
support order is in effect, the termination of child support by
operation of law shall constitute a change of circumstances that
may be the basis for a request for modification of spousal
support. SB 415 contained a sunset of three years to allow the
Legislature sufficient time to evaluate the impact of the
legislation. SB 1482 (Wright, Ch. 297, Stats. 2010) extended the
sunset for an additional three years and required that motions
for modification of spousal support based on termination of
child support be filed within six months, and allowed parties to
request the appointment of a vocational counselor.
Those provisions sunsetted on January 1, 2014. This bill seeks
to re-enact the statute and its provisions without any sunset.
CHANGES TO EXISTING LAW
Existing law 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 the
standard of living established during the marriage. (Fam. Code
Sec. 4330.)
Existing law 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. (Fam. Code
Sec. 3901.)
Existing law provides, until January 1, 2014, that in a
proceeding in which a spousal support order exists or in which
the court has retained jurisdiction over a spousal support
order, if a companion child support order is in effect, the
termination of child support shall constitute a change of
circumstances that may be the basis for a request for
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modification of spousal support. (Fam. Code Sec. 4326(a).)
Existing law provides, until January 1, 2014, that a motion to
modify spousal support based on the change of circumstances
described above be filed within six months of the termination of
the child support order. (Fam. Code Sec. 4326(b).)
Existing law authorizes, until January 1, 2014, either party to
request the appointment of a vocational training counselor if a
motion to modify spousal support on that basis is filed. (Fam.
Code Sec. 4326(c).)
Existing law provides, until January 1, 2014, that the
termination of a child support order would not constitute a
change of circumstances in cases that have resolved pursuant to
a stipulated marital settlement agreement where one of the
following is true: (1) the agreement or judgment contains a
provision regarding what is to occur when the child support
order terminates; or (2) the agreement or judgment provides that
the spousal support order is non-modifiable, spousal support has
been waived, and the court's jurisdiction over spousal support
has been terminated. (Fam. Code Sec. 4326(d).)
This bill would re-enact the above provisions that sunsetted on
January 1, 2014.
COMMENT
1.Stated need for the bill
According to the author:
AB 414 seeks to reinstate Family Code Section 4326, which
expired on January 1, 2014, due to a three year sunset
provision. This bill would maintain family law rules on
spousal support modification that have been in effect from
2008 to 2013. Specifically Section 4326 considers a child
graduating from high school as a change of circumstance so a
party may seek a modification of spousal support when the
child support order is no longer in effect. If Section 4326
is not reenacted, a termination of child support will no
longer constitute a change of circumstances and a modification
of spousal support on these grounds may not be permitted. AB
414 contains an urgency clause in order to protect parties in
family law cases who may be injured by the January 1, 2014
sunset in the former Section 4326.
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2.Would re-enact provisions without sunset
This bill would authorize parties to request a modification of
spousal support after a child support order terminates by
"operation of law," typically when the child reaches the age of
majority and is no longer entitled to support. Child support,
which is calculated before spousal support, may reduce the money
available to pay spousal support. Thus, when the child support
order terminates, the spousal support order may no longer be in
an appropriate amount. Prior to 2008, the termination of the
child support order by operation of law did not automatically
allow the party who had received the child support to go back to
court to seek either new spousal support or an increase in an
existing order of spousal support. Under this traditional
approach, the party seeking a support modification was required
to show other supporting facts, also known as a "change of
circumstances," before the court would consider altering a
support order.
However, in 2007, SB 415 (Harman, Ch. 247, Stats. 2007) altered
the traditional rule on an experimental basis to allow a party
to automatically be permitted to seek new or modified spousal
support when a child support order terminated. That bill
included a three-year sunset to allow the Legislature to see
whether the process created unintended consequences or led to
increased family law litigation. SB 1482 (Wright, Ch. 297,
Stats. 2010) subsequently extended the sunset until January 1,
2014, and limited the availability of such automatic spousal
support requests to cases filed within six months from the date
the child support order terminated. In addition, SB 1482
permitted either party to request the appointment of a
vocational training counselor. This bill, sponsored by the
Family Law Section of the State Bar, would re-enact the statute
without the sunset. In support of the bill, the Family Law
Section of the State Bar writes that "Family Code Section 4326
addresses significant issues and has worked well. This bill
would continue the operation of this important statute
indefinitely."
3.Lapse in coverage of statute
The ability to modify spousal support based on child support
terminating by operation of law has been unavailable since
January 1 of this year. Because modifications under former
Family Code Section 4326 must be made within six months of the
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termination of the child support order, this bill would need to
be enacted as soon as possible to ensure that otherwise eligible
persons do not miss the opportunity to modify support orders
because of an unintentional lapse in coverage of the statute.
Accordingly, this bill would include an urgency statute to allow
for the speedy enactment of its provisions.
However, even with early enactment pursuant to the urgency
clause, there may still be a lapse in the coverage of the
relevant statute. Accordingly, the author offers the following
amendment to allow additional time for individuals who would
otherwise be time barred due to the lapse.
Author's amendment
Page 2, strike lines 31 - 32 and insert "(e) With regards to
those situations where the six month statute of limitations
expired from January 1, 2014 through June 30, 2014, the time
to file a motion under this Section is extended until August
30, 2014."
4.Opposition's concerns
The National Parents Organization of California writes in
opposition that this bill "serves to confuse these two separate
support mechanisms, suggesting that the financial needs of the
child are directly related to the financial needs of one parent.
Already, support of either type can be revisited if a
life-event occurs. Because of this, at best this bill is not
necessary. What it does, however, is entangle the issues of
spousal support and child support, which can further inflame the
conflict between parties and cause financial turmoil. Neither
of these situations improves the life of the child - and we
argue that they cause further harm."
Spousal support and child support are, indeed, two separate
support mechanisms. However, the termination of child support
potentially affects two factors in determining an appropriate
spousal support award: 1) the supported party's ability to be
self-supporting; and 2) the other party's ability to provide
support. (See Fam. Code Sec. 4320.) Both of these factors are
arguably impacted by a child reaching adulthood, when a
custodial parent may return to work on a full-time basis and a
supporting parent may have a greater ability to pay. Further,
this bill would not create a mechanism by which spousal support
is automatically recalculated, but instead allows for either
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party to petition the court for a re-evaluation of whether an
existing support order remains appropriate.
Support : Association of Certified Family Law Specialists
Opposition : National Parents Organization of California
HISTORY
Source : Family Law Section of the State Bar (FLEXCOM)
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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