BILL ANALYSIS                                                                                                                                                                                                    




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          |SENATE RULES COMMITTEE            |                         SB 28|
          |Office of Senate Floor Analyses   |                              |
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                                       CONSENT


          Bill No:  SB 28
          Author:   Wieckowski (D)
          Amended:  5/13/15  
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 5/5/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           SUBJECT:   Spousal support factors:  domestic violence  
                     conviction


          SOURCE:    Author


          DIGEST:  This bill clarifies that pleas of nolo contendere to  
          allegations of domestic violence are included in a documented  
          history of domestic violence that a court must consider when  
          making an award of spousal support.


          ANALYSIS:  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.) 
           
           This bill provides that a plea of nolo contendere to domestic  
          violence shall be considered by the court as part of a  
          documented history of domestic violence. 
          
          Background








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          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  
          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.

          Accordingly, this bill clarifies that a court, when making an  
          award of spousal support, should consider any pleas of no  
          contest to domestic violence, in its consideration of a  
          documented history of domestic violence between spouses. 

          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.

          AB 2674 (Block, Chapter 65, Statutes of 2010) prohibited an  








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          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) provided 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.

          Comments 
          
          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.  

               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.
          
          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified5/13/15)


          Asian Americans for Community Involvement
          California Partnership to End Domestic Violence 
          Safe Alternatives to Violent Environments










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          OPPOSITION:   (Verified5/13/15)


          None received




          Prepared by:Nichole Rapier / JUD. / (916) 651-4113
          5/13/15 17:26:26


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