BILL ANALYSIS Ó 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. **************