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 AB 380 (Waldron) Page 2 of ? 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 AB 380 (Waldron) Page 3 of ? 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 AB 380 (Waldron) Page 4 of ? 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 AB 380 (Waldron) Page 5 of ? 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 AB 380 (Waldron) Page 6 of ? to this bill, was never set for hearing. Prior Vote : Assembly Floor (Ayes 79, Noes 0) Assembly Judiciary Committee (Ayes 10, Noes 0) **************