BILL ANALYSIS Ó
SB 28
Page 1
SENATE THIRD READING
SB
28 (Wieckowski)
As Amended May 13, 2015
Majority vote
SENATE VOTE: 36-0
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|Committee |Votes|Ayes |Noes |
| | | | |
| | | | |
| | | | |
|----------------+-----+----------------------+--------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, | |
| | | | |
| | | | |
| | |Cristina Garcia, | |
| | |Holden, Maienschein, | |
| | |O'Donnell | |
| | | | |
| | | | |
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SUMMARY: Provides that a plea of nolo contendere to a domestic
violence offense constitutes documented evidence of domestic
violence that a court must consider when deciding whether to
order spousal support. Specifically, this bill provides that a
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plea of nolo contendere is included in the documented evidence
of any history of domestic violence between the parties or
perpetrated by either party against either party's child, as
provided, that a court must consider when deciding whether to
award spousal support.
EXISTING LAW:
1)Allows a court to order one party to a dissolution or legal
separation to pay spousal support to the other party for a
period of time that the court determines is just and
reasonable, as provided.
2)Requires the court, when determining whether to award spousal
support, to consider specified factors and circumstances,
including a documented history of domestic violence. In
addition to the specified factors, authorizes the court to
consider any other factors that the court determines are just
and equitable in determining a spousal support award.
3)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 dissolution of the marriage, or any time
thereafter.
4)In addition to any other remedy, prohibits a spouse who is
convicted of attempting to murder the other spouse, or
soliciting the murder of the other spouse, from receiving any
temporary or permanent award of spousal support, medical, life
or other insurance benefits or payments from the injured
spouse.
5)Prohibits an award of spousal support to a spouse who has been
convicted of a violent sexual felony against the other spouse,
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if the dissolution proceeding is filed within five years of
the conviction or time served, as specified.
6)Provides that the legal effect of a plea of nolo contendere to
a misdemeanor is the same as a plea of guilty and that, upon a
plea of nolo contendere, the court shall find the defendant
guilty. Provides that the plea may not be used against the
defendant as an admission in any civil suit based upon or
growing out of the act upon which the criminal prosecution is
based.
FISCAL EFFECT: None
COMMENTS: When parties in a divorce proceeding request spousal
support, the court may order either spouse to pay for the
support of the other party for a period of time that the court
considers just and reasonable based on the standard of living
established during the marriage. In determining the amount of
support, the court is required to take many factors into
consideration, including evidence of any history of domestic
violence between the two parties. In addition, there is a
rebuttable presumption that spousal support is not to be granted
to a spouse who has been convicted of domestic violence during
the five years preceding the filing of a petition for
dissolution. This bill clarifies that a plea of nolo contendere
(no contest) to a domestic violence charge is indeed documented
evidence of domestic violence that the court must consider when
deciding whether to award either party spousal support.
Spousal Support and Domestic Violence. 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. 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
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standard of living established during the marriage. 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, the ability of each party to engage in
employment considering the interests of dependent children, and
any other factors that the court determines are just and
equitable. Of particular relevance here, the court is also
required to consider documented evidence of any history of
domestic violence between the parties. As a result of the
complexity of the factors that the court must consider and the
individual circumstances of the parties and families involved,
courts are given broad discretion in determining spousal support
awards.
For the most part, spousal support is discretionary. However,
existing law specifically restricts a court's ability to award
spousal support in a few situations. First, when a spouse is
convicted of attempted murder of the other spouse, no award of
spousal support is available to the convicted spouse. Second,
when a spouse is convicted of a violent sexual felony against
the other spouse, as specified, the convicted spouse is
prohibited from receiving spousal support. Third, when a spouse
is convicted of domestic violence against the other spouse,
there is a presumption against the award of spousal support to
the convicted spouse, although the presumption may be overcome.
Finally, as discussed above, when ordering a spousal support
award, a court must consider documented history of domestic
violence, including but not limited to emotional distress or
violence, committed by one spouse against the other or by one
spouse against the children of the other spouse.
Effect of a No Contest Plea. A plea of nolo contendere or no
contest is treated like a guilty plea in the criminal
proceedings. However, a no contest plea generally may not be
used as an admission of guilt in a subsequent civil suit based
on the criminal conviction. Even in civil actions where a no
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contest plea is admissible, the party who enters the plea may be
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.
Recent Appellate Case Holds That No Contest Plea in Domestic
Violence Case Creates a Presumption Against Spousal Support. A
recent appellate court found that a no contest plea to a
domestic violence offense by one spouse against the other spouse
within the previous five years, like a guilty plea or a
conviction, creates a rebuttable presumption that spousal
support should not be awarded to the abusive spouse. In that
case, In re Marriage of Priem (2013) 214 Cal. App. 4th 505, one
spouse had a history of domestic violence against the other
spouse, including multiple protective orders and several
criminal convictions including a criminal conviction within the
previous five years to which the spouse had pleaded no contest.
The appellate court agreed with the trial court that the
conviction based on the no contest plea created a presumption
that spousal support would not be awarded to the abusive spouse
under existing law. The court noted that the no contest plea
only created a presumption against spousal support which could
be rebutted by the spouse seeking support. Thus, the convicted
spouse could explain to the court why he or she had pled no
contest to the domestic violence charge, contest the truth of
the matters admitted in the pleas, and, depending on that
explanation, overcome the presumption against spousal support.
This Bill Simply Requires the Courts Consider a No Contest Plea
When Deciding on Spousal Support. This bill does not go quite
as far as In re Marriage of Priem, simply stating that a no
contest plea to a domestic violence offense is documented
evidence of domestic violence that a court must consider when
deciding whether to order spousal support. Thus, this bill
simply clarifies that a court must consider the no contest plea,
but does not create a presumption against the award of spousal
support based upon that plea. This ensures that courts continue
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to have broad discretion in deciding when to award spousal
support, but also ensures that courts consider relevant issues
when making that decision.
Analysis Prepared by:
Leora Gershenzon / JUD. / (916) 319-2334 FN:
0000950