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)
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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
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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,
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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
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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
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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.
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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.
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