BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 28|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
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
SB 28
Page 2
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
SB 28
Page 3
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
SB 28
Page 4
OPPOSITION: (Verified5/13/15)
None received
Prepared by:Nichole Rapier / JUD. / (916) 651-4113
5/13/15 17:26:26
**** END ****