BILL ANALYSIS                                                                                                                                                                                                    





                             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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