BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 28 (Wieckowski)
Version: December 1, 2014
Hearing Date: May 5, 2015
Fiscal: No
Urgency: No
NR
SUBJECT
Spousal support factors: domestic violence conviction
DESCRIPTION
Existing law requires that in any proceeding for dissolution of
marriage where there is a criminal conviction for an act of
domestic violence, as specified, there is a rebuttable
presumption that any award of spousal support to the abusive
spouse should not be made. This bill would provide that a plea
of nolo contendere would constitute a criminal conviction for
the purposes of spousal support.
BACKGROUND
When parties in a divorce proceeding request spousal support,
the court may order either spouse to pay "any amount that is
necessary" for the other spouse's support, intended to maintain
the standard of living established during the marriage. The
Court is required to take many factors into consideration,
including: the marketable skills of the supported party; the
extent to which the supported party contributed to the earning
capacity of the supporting party; the needs of each party; the
obligations and assets of each party; and evidence of any
history of domestic violence between the two parties. (Fam.
Code Sec. 4320.) In addition, there is a rebuttable presumption
that spousal support requests are not to be granted to spouses
who have been convicted of domestic violence during the five
years preceding the filing of a petition for dissolution.
Nolo contendere is Latin for "I do not wish to contend," and is
often referred to as a plea of "no contest." In criminal trials
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it is a plea where the defendant neither admits nor disputes a
charge, serving as an alternative to pleading guilty or not
guilty. These pleas generally have the same effect as a guilty
plea, but do not require the prosecution and defense to put on a
full trial. Accordingly, pleas of no contest do not require any
evidence be presented to the court.
This bill would provide that, for charges of domestic violence,
a plea of no contest shall be treated as a criminal conviction
for the purposes of spousal support.
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 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, 4325.)
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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.)
This bill would provide that a plea of nolo contendere would
constitute a criminal conviction for the above purposes.
COMMENT
1.Stated need for the bill
According to the author:
A spouse who has pleaded nolo contendere, i.e. no contest, to
charges of domestic violence should have to prove to a judge
why he or she deserves an award of spousal support in later
divorce proceedings, just like a spouse that had pleaded, or
was found, guilty. The language of Family Code section 4325
left it unclear whether a no contest plea constitutes a
"criminal conviction" for purposes of this code section, which
triggers the rebuttable presumption to deny a spousal support
award.
A spouse tried to exploit this precise ambiguity In re
Marriage Priem, (1st Dis. 2013) 214 Cal.App.4th.505, to
receive spousal support even though she had a documented
history of committing domestic violence against her husband.
This bill will eliminate the ambiguity and stop more cases
like Priem being brought in other jurisdictions.
Divorce proceedings are complex and must be decided on a
case-by-case basis. Thus, judges have broad discretion in
how, and whether, to award spousal support. This bill retains
judicial discretion in awarding spousal support while ensuring
a spouse who pleaded no contest to committing domestic
violence is treated the same as a spouse who pleaded, or was
found, guilty.
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2.Presumption against spousal support effectively creates a
prohibition for self-represented litigants
Generally, pleas of nolo contendere are not deemed conclusive in
subsequent civil proceedings as admissions of wrongdoing. Even
in civil actions where a plea of nolo contendere is admissible,
the party is traditionally permitted to contest the truth of the
matters admitted by the plea, to present all facts surrounding
the nature of the charge, and to explain why the plea was
entered because such a plea necessarily implies a bargain and is
seen as an agreement between the prosecution and the defendant.
A party seeking spousal support in a divorce, who has been
convicted of domestic violence within the past five years, must
overcome a presumption against the award of support. That party
may rebut the presumption against by providing documented
evidence of his or her history as a victim of domestic violence,
perpetrated by the other spouse, or any other factors the court
deems just and equitable. This bill would provide that a plea
of nolo contendere would constitute a criminal conviction for
the purposes of spousal support, and thus, apply that
presumption against an award of support to that plea.
Accordingly, this bill would require persons who have previously
plead no contest to domestic violence charges to overcome that
presumption in any subsequent divorce action before qualifying
for spousal support. Currently in California, approximately 85
percent of family law litigants are self-represented. Among the
persons seeking spousal support, that percentage is even higher.
Arguably, requiring self-represented litigants to submit
additional evidence, subject to complex rules of evidence,
effectively acts as a bar to spousal support. To address this
issue, the amendment below (see Comment 3) would ensure that the
court considers pleas of no contest to domestic violence charges
in issuing a fair and equitable spousal support award, but would
not require a party to rebut a presumption against support.
3."No fault" divorce system in California
By creating a presumption against an award of spousal support to
a spouse who has previously pleaded no contest to a charge of
domestic violence, this bill 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
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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, by awarding the other spouse more spousal
support or community property. An 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. Because courts often issue
mutual restraining orders in domestic violence situations when a
party was actually protecting herself in self-defense, and pleas
of nolo contendere are not equivalent to an admission of guilt
do not require that any evidence be presented at trial to
support the charge, this bill could negatively impact women, who
were actually victims of domestic violence, from being awarded
spousal support. In this way, by restricting a court's ability
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to apply discretion to parties' unique situations, this bill
could have the unintentional consequence of limiting the court's
ability to create fair and equitable orders.
To address this issue, the following amendment would instead
provide that a court shall consider a plea of nolo contendere in
awarding spousal support, which will allow the court to exercise
discretion in the awarding of spousal support.
Author's amendments:
1. On page 2, strike lines 12-14 inclusive
2. Family Code Section 4320(i) is amended to read: (i)
Documented evidence of any history of domestic violence, as
defined in Section 6211, between the parties, including
pleas of nolo contendere, or perpetrated by either party
against either party's child, 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.
1.Authority to deny spousal support award 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 is required to consider any documented
evidence of any history of domestic violence between the parties
or against either party's child. (Fam. Code Sec. 4320(i).)
Under this last consideration, the court clearly has the
authority to take into account a plea of no contest to a
domestic violence charge when determining what is a just and
equitable spousal support award. However, the family court
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cannot take mere allegations of abuse, without proof, into
consideration in determining spousal support. Pleas of no
contest technically result in a conviction, but without any
evidence having been presented at court. There are a variety of
reasons to plead no contest, many of which do not involve guilt.
An individual with no prior criminal history may plead no
contest simply to resolve the matter quickly and avoid the
inconvenience of trial. In the event of mutual restraining
orders, a woman may have been charged with domestic violence
while attempting to protect herself in self-defense. The fact
that she does not want to relive her abuse through evidence
presented at trial should not be a reason to make her overcome
additional hurdles in order to be awarded spousal support.
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. The amendment (see Comment 2) would allow
a court to look into the reasons why a party plead no contest to
a domestic violence charge, without requiring that party to
present additional evidence at trial, and issue a fair spousal
support award for the parties' unique situation.
Support : Asian Americans for Community Involvement; California
Partnership to End Domestic Violence
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 681 (Melendez and Skinner, Chapter 455, Statutes of 2013)
required the court to consider domestic violence perpetrated by
either party against either party's child when determining
spousal support.
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.
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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 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.
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