BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 380 (Waldron)
          Version: May 14, 2015
          Hearing Date: June 16, 2015
          Fiscal: No
          Urgency: No
          NR


                                        SUBJECT
                                           
                             Marriage:  putative spouses

                                      DESCRIPTION  

          Existing law specifies the circumstances under which a marriage  
          is void or voidable, and requires the court to declare either  
          party, who believed in good faith that the marriage was valid,  
          to have the status of a putative spouse and to divide the  
          quasi-marital property as if it were community property.

          This bill would, instead, require the court, only upon request  
          of a party who is declared a putative spouse, to divide the  
          quasi-marital property as if it were community property.

                                      BACKGROUND
                                           
          The California Family Code defines legal marriage as a "personal  
          relation arising out of a civil contract between two persons, to  
          which the consent of the parties capable of making that contract  
          is necessary." (Fam. Code Sec. 300.) Although marriage is  
          generally treated as a private and personal decision, the courts  
          have long held that the state has an important interest in the  
          institution of marriage, and has therefore regulated limits for  
          those who can marry based on a variety of factors, including  
          age, affinity, consanguinity, and mental capacity. 

          The putative spouse doctrine is considered a remedial device to  
          validate an otherwise invalid marriage. Exercising equitable  
          powers, the courts have invoked the putative spouse doctrine to  
          protect those who in good faith, attempted to comply with the  








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          formalities required for valid marriage. In general, the  
          doctrine applies when at least one of the parties has a good  
          faith belief in the existence of a legal marriage. Even before  
          its codification by the legislature in 1969, the courts applied  
          the doctrine to both void and voidable marriages. The  
          codification of the putative spouse doctrine was part of a  
          comprehensive revision of California's family laws which  
          included the introduction of no-fault divorce.  Thus, prior to  
          1970, fault impacted the division of property in a divorce,  
          entitling the "innocent" spouse to a greater share of the  
          community property. 

          In In re Marriage of Tejeda (2009) 179 Cal.App.4th 973, the  
          Court of Appeal looked at the case of a bigamous husband and  
          innocent wife living in a putative marriage for over thirty  
          years.  When the husband petitioned for dissolution, the wife  
          petitioned for nullification and requested that property titled  
          in her name be confirmed as her separate property. The court  
          found the putative spouse statute was clear and unambiguous,  
          requiring that upon a finding that one spouse has a good faith  
          belief in the existence of a legal marriage, the union itself  
          becomes a putative marriage.  The property acquired during the  
          putative marriage, although titled in the innocent wife's name,  
          was then characterized as quasi-marital property and divided  
          equally between the spouses. 

          This bill, seeking to better protect "innocent" spouses, would  
          amend the Family Code to provide that only a putative spouse,  
          who believed in good faith that the marriage was valid, can  
          elect to have quasi-community property divided equally between  
          the spouses. 

                                CHANGES TO EXISTING LAW
           
           Existing law  defines marriages that are either void (i.e.,  
          involving incest or bigamy) or voidable (e.g., including  
          marriages in which one party was incapable of consent, the  
          spouse of one party was absent for at least five years, or  
          consent obtained by fraud or force).  (Fam. Code Secs. 2200-01.)

           Existing law  provides that if a marriage is void or voidable and  
          either party believed in good faith that the marriage was valid,  
          the court must declare the party or parties to have the status  
          of putative spouse, and divide the property that would have been  
          community property if the marriage was valid as if it were  







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          community property.  (Fam. Code Sec. 2251.)

           This bill  would, for the purposes of community property,  
          prohibit the court from determining that a spouse was putative  
          unless he or she personally had a good faith belief that the  
          marriage was valid. 

           This bill  would prohibit the court from dividing property as if  
          the marriage had been valid unless requested to do so by a  
          putative spouse.  






                                        COMMENT
           
           1.Stated need for the bill
           
          According to the author: 

            While other provisions of the Family Code include provisions  
            of the putative spouse doctrine and grant relief only to a  
            putative (i.e., innocent) spouse, the language of Family Code  
            Section 2251 applies community property to any case where  
            there is a putative spouse, even when that would not benefit  
            the putative spouse. ? AB 380 would revise the language of  
            Family Code Section 2251 to make clear that the community  
            property division in that statute can only be invoked at the  
            request, and for the benefit, of the putative spouse.

           2.Would allow an innocent spouse to elect how quasi-marital  
            property is divided
           
          This bill, seeking to address what the Conference of California  
          Bar Associations, sponsor, calls a "split" in case law, would  
          provide that only an "innocent spouse" may request a division of  
          quasi-community property.  The sponsor argues that this bill  
          would "make the statute consistent with related statutes and the  
          historic intent of the putative spouse doctrine."

          To that end, this bill would arguably invalidate In re Marriage  
          of Tejeda (2009) 179 Cal.App.4th 973 where the court, after  
          finding that the wife was indeed an innocent spouse, deemed the  







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          marriage a putative marriage, and divided all property acquired  
          during the marriage equally between parties (see Background). In  
          reaching its decision, the Tejeda court considered two related  
          statutes and the purpose of the putative spouse doctrine.   
          Family Code Section 2254 permits an order of spousal support for  
          a putative spouse, and Section 2255 provides for attorney's fees  
          and costs to innocent putative spouses. Since the Legislature  
          singled out the "innocent" party in providing for fees, and  
          likewise singled out the "putative spouse" in providing for  
          support, but did not limit quasi-marital property division to an  
          innocent spouse, the Tejeda court concluded that the Legislature  
          intended for an equal division of the marital property even if  
          one of the spouses was "guilty."

          Proponents of this bill argue that its provisions are needed to  
          protect an innocent spouse from a spouse who knowingly entered  
          into a bigamous marriage, did not contribute to the community,  
          and seeks to take half of the quasi-community property.  In  
          support, the Association of Certified Family Law Specialists  
          writes that this bill would ensure that "a party who did not  
          believe in good faith that the marriage was valid shall not be  
          entitled to the status of putative spouse and shall not be  
          entitled to request the court to issue an order dividing the  
          property that 'would have been' community or quasi-community  
          property." Staff notes that while the result in Tejada appears  
          to have created a windfall for the bigamous husband, the  
          property division actually gave the innocent wife what she  
          expected from a legal marriage - an equal division of the  
          marital property.  

          This bill would, instead, allow an innocent spouse to decide  
          whether he or she would like to take a community share, or  
          alternatively have all property deemed separate property.  This  
          would arguably create an additional factor that parties to a  
          dissolution will dispute, and may be underused by  
          self-represented litigants who do not understand how the  
          putative spouse doctrine is applied.  

           3.Subjective standard used in determining if a spouse is  
            innocent
           
          In 2013, the California Supreme Court held that in determining  
          whether a spouse had a good faith belief in the validity of a  
          marriage is an inquiry of a subjective nature that focuses on  
          the actual state of mind of the alleged putative spouse.   In  







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          Ceja v. Rudolph and Sletten, Inc. 56 Cal.4th 1113, the court  
          explained: 

            While there is no requirement that the claimed belief be  
            objectively reasonable, good faith is a relative quality and  
            depends on all the relevant circumstances, including objective  
            circumstances. In determining good faith, the trial court must  
            consider the totality of the circumstances, including the  
            efforts made to create a valid marriage, the alleged putative  
            spouse's personal background and experience, and all the  
            circumstances surrounding the marriage. Although the claimed  
            belief need not pass a reasonable person test, the  
            reasonableness or unreasonableness of one's belief in the face  
            of objective circumstances pointing to a marriage's invalidity  
            is a factor properly considered as part of the totality of the  
            circumstances in determining whether the belief was genuinely  
            and honestly held. (Id. at 1128.)

          Thus, the law protects individuals who had a genuine, good faith  
          belief in the validity of a marriage, whether or not that belief  
          was objectionably reasonable.  As more and more individuals  
          represent themselves in family law courts, the need to protect  
          genuinely held, good faith beliefs takes on additional  
          importance.  With regard to the putative spouse doctrine, the  
          subjective nature of this inquiry should also serve to protect  
          individuals who learned of a defect after marriage, but thought  
          in good faith that remedying the defect would validate a  
          marriage. 


           Support  :  Association of Certified Family Law Specialists;  
          Executive Committee of the Family Law Section of the State Bar 

           Opposition  :  None Known 

                                           


                                       HISTORY
           
           Source  :  Conference of California Bar Associations

           Related Pending Legislation  :  None Known

           Prior Legislation  : SB 254 (Harman, 2011), substantially similar  







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          to this bill, was never set for hearing. 


           Prior Vote  :

          Assembly Floor (Ayes 79, Noes 0)
          Assembly Judiciary Committee (Ayes 10, Noes 0)

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