BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 681 (Melendez)
          As Amended May 24, 2013
          Hearing Date: July 2, 2013
          Fiscal: No
          Urgency: No
          NR


                                        SUBJECT
                                           
                                   Spousal support

                                      DESCRIPTION  

          This bill would prohibit an award of spousal support to a spouse  
          convicted of a violent sexual felony against a child, as  
          specified, and provide that the conviction of this felony  
          constitutes a change in circumstances for the purposes of a  
          spousal support modification request.  This bill would also  
          authorize a court to order a convicted spouse to repay the other  
          spouse any support received after the date of the commission of  
          the violent sexual felony against a child. 

                                      BACKGROUND  

          This bill is a response to a Los Angeles case concerning Carol  
          Abar. In 2007, Carol filed for divorce after her daughter  
          disclosed that her step-father had been raping her for years.   
          The court reasoned that in determining spousal support it could  
          not rely on mere allegations of abuse, and ordered Carol to pay  
          $1300 per month to Abar in support.  Last year, Abar plead  
          guilty to one of the five rape charges and was sentenced to more  
          than a year in jail, during which time spousal support payments  
          were suspended.  Now out of jail, Abar seeks to have the spousal  
          support reinstated, and is asking for $33,000 in past due  
          support.

          Accordingly, this bill would prohibit an award of spousal  
          support to a spouse convicted of a violent sexual felony against  
          a child of either of the parties.  Additionally, this bill would  
          provide that such a conviction would be considered a change of  
                                                                (more)



          AB 681 (Melendez)
          Page 2 of ?



          circumstance for a spousal support modification request, and  
          would make other conforming changes. 

                                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 in any proceeding for dissolution of  
          a marriage, where there is a criminal conviction for a violent  
          sexual felony perpetrated by one spouse against the other, an  
          award of spousal support to the convicted spouse is prohibited.  
          Existing law further authorizes that when one spouse is  
          convicted of a violent sexual felony against the other, the  
          court to order attorney fees be covered out of community  
          property assets, and provides that the injured spouse is  
          entitled to 100 percent of his or her interest in pension or  
          retirement benefits. (Fam. Code Sec. 4326.)

           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. 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. Existing law further authorizes the court to consider  
          any other factors that the court determines are just and  
          equitable in determining a spousal support award. (Fam. Code  
          Secs. 4320 and 4325.) 

           This bill  would prohibit an award of spousal support to the  
          convicted spouse in any proceeding for dissolution of a marriage  
                                                                      



          AB 681 (Melendez)
          Page 3 of ?



          where there is a criminal conviction for a violent sexual felony  
          committed against a child, as defined. 

           This bill  would provide that a conviction for a violent sexual  
          felony committed by one spouse against a child would constitute  
          a change of circumstances for the purposes of a spousal support  
          modification request, and provide that if a change of  
          circumstances occurs as a result of a violent sexual felony, any  
          spousal support owed in arrears would be vacated. 

           This bill  would authorize a court to order a convicted spouse to  
          repay the other spouse any spousal support received since the  
          date of the commission of the violent sexual felony against a  
          child until the date of conviction. 

           This bill  would define "child" as a child of either party, or a  
          child where the male parent is the presumed father of the child  
          to be protected.
                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author:

            In cases where a spouse is convicted of a violent sexual  
            felony against the other spouse, the victimized spouse is  
            legally exempt from providing spousal support in a marriage  
            dissolution proceeding.  However, in cases where the victim is  
            the spouse's child, the law makes no exception for the  
            not-guilty spouse in providing spousal support to the  
            convicted spouse.

            AB 681 will exempt a spouse in the process of marriage  
            dissolution from the requirement of providing spousal support  
            to a spouse convicted of a violent sexual felony against their  
            child committed on or after January 1, 2014.

           2.Threatens "no fault" divorce system in California 

           This bill would prohibit an award of spousal support to a spouse  
          convicted of a violent sexual felony against a child, as  
          specified. This would create an exception to the general policy  
          in California, which is a "no fault" divorce state.  A no fault  
          divorce policy allows either party to file for dissolution  
          without the need to prove fault by the other spouse.  Hence,  
          courts do not punish a party for wrong doing, such as an affair,  
                                                                      



          AB 681 (Melendez)
          Page 4 of ?



          by awarding the other spouse more spousal support or community  
          property. A recent article from the Cincinnati Law Review  
          describes the importance of the no-fault divorce system for  
          women: 

            Having to prove grounds in order to obtain a divorce was  
            traditionally mired with rigid hierarchical notions of male  
            and female gender roles, and divorce has too often been  
            awarded in a discriminatory fashion.  Moreover, feminists  
            aspiring to formal equality and fighting women's traditional  
            dependence on men have supported allowing either party to a  
            marriage to exit if they so choose without having to prove or  
            contrive the existence of fault." (Laufer-Ukeles, Pamela,  
            Reconstructing Fault: the Case for Spousal Torts, (2010) 79 U.  
            Cin. L. Rev. 207.) 

          Accordingly, in California, spousal support is awardable without  
          regard to the merits or procedural posture of the case, and  
          torts and criminal acts are dealt with in their respective  
          courts.  (See Marriage of Askmo (2000) 85 Cal.4th 1032.)  Courts  
           are instead required to 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 between the  
          parties, 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.  This bill would instead require  
          a court to make certain orders based on criminal convictions,  
          thereby inserting "fault" into what is a "no-fault" system.   
          Restricting a court's ability to apply discretion to parties  
          unique situations, fails to anticipate that future cases will  
          arise which were not anticipated by the Legislature, and limits  
          the court's ability in those circumstances to create fair and  
          equitable orders.  
           
           The following amendment would instead require the court to  
          consider a history of domestic violence as perpetrated against a  
                                                                      



          AB 681 (Melendez)
          Page 5 of ?



          spouse and/or children, as defined, when making an award of  
          spousal support.  

             Author's amendment:
           
            On page 2, strike lines 1-14 inclusive

            Strike page 3-5 inclusive

            Family Code Section 4320(i) is amended to read: Documented  
            evidence of any history of domestic violence, as defined in  
            Section 6211, between the  parties or either of their children,   
            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.
           
          It should be noted that the above amendment would also strike  
          the parts of the bill which raised policy concerns, and would  
          ensure that this bill remains consistent with existing family  
          law policies.   Specifically, this amendment will remove the  
          requirement of the court to create an order, based on a criminal  
          conviction, which could benefit someone other than the actual  
          victim.  This amendment would also ensure that the retroactivity  
          of support order modifications are consistent with existing law.  
           

          3.Authority to prohibit spousal support award present under  
            existing law 

           Existing law restricts a court's ability to award spousal  
          support only in a handful of 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.)  Secondly, when a spouse is convicted of a  
          violent sexual felony against the other spouse, as specified,  
          the convicted spouse is prohibited from receiving an award of  
          spousal support.  (Fam. Code Sec. 4324.5.) When a spouse is  
          convicted of domestic violence against the other, a presumption  
          is created against an award of spousal support to the convicted  
          spouse.  (Fam. Code Sec. 4325.) Finally, in ordering a spousal  
          support award, a court may consider "any other factors the court  
          determines are just and equitable." (Fam. Code Sec. 4320 (n).)

          Under this last consideration, the court arguably has the  
                                                                      



          AB 681 (Melendez)
          Page 6 of ?



          authority to take into account the criminal conviction of a  
          spouse when determining what is a just and equitable spousal  
          support award. In addition, the law allows a support order to be  
          modified or terminated at any time the court determines to be  
          necessary.  (Fam. Code Sec. 3651.)  

          The case which is the impetus for this bill is highly  
          sympathetic because the abuser was ultimately found guilty of  
          the allegations against him.  However, that the family court  
          could not take mere allegations of sexual abuse, without proof,  
          into consideration in determining spousal support, generally  
          operates to protect parties.  Arguably, the vast majority of  
          divorces are contentious, and parties may accuse each other of  
          various acts.  Thus, that a court cannot act without proof  
          serves to protect parties from spurious accusations.  However,  
          now that Abar has plead guilty to the sexual abuse of Carol's  
          daughter, the court may take that criminal conviction into  
          account when considering a request to modify the spousal support  
          award.   
           
           
           Support  :  California Coalition Against Sexual Assault;  
          California District Attorneys Association; California State  
          Association of Counties; California State Sheriffs' Association;  
          Crime Victims United of California; Los Angeles County District  
          Attorney's Office; National Association of Social  
          Workers-California Chapter; Riverside County District Attorney;  
          Women of Worth

           Opposition  :  None Known 

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  : None Known

           Prior Legislation  :

          AB 1522 (Atkins, Chapter 718, Statutes of 2012) prohibited an  
          award of spousal support to a spouse convicted of a violent  
          sexual felony against the other spouse, as specified.

          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 681 (Melendez)
          Page 7 of ?




          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  :  Not relevant to current version of this bill.

                                   **************