BILL NUMBER: SB 1082 INTRODUCED
BILL TEXT
INTRODUCED BY Senators Ducheny and Morrow
(Principal coauthor: Senator Ashburn)
(Coauthors: Senators Cox, Dunn, Dutton, Machado, Soto, and Speier)
(Coauthors: Assembly Members DeVore, Haynes, Houston, Huff, La
Malfa, La Suer, Leslie, Maze, Mountjoy, Niello, Oropeza, Parra,
Plescia, Umberg, and Wyland)
FEBRUARY 22, 2005
An act to amend Sections 3651, 3653, and 17560 of, and to add
Section 17440 to the Family Code, relating to child support.
LEGISLATIVE COUNSEL'S DIGEST
SB 1082, as introduced, Ducheny. Child support: military
reservists.
(1) Existing law sets forth provisions by which a support order
may be revised by the court and specifies that a support order may
not be modified or terminated as to an amount that accrued before
filing of a motion or an order to show cause to modify, except as
specified.
This bill would create an additional exception to this rule to
permit service members activated to United States military duty or
National Guard service to request modification of a support order, as
specified. The bill would require the service member to indicate the
date of deployment and would require the court, if possible, to
schedule a hearing on the matter prior to that date, or grant a stay
of proceedings consistent with certain federal time lines for stays.
The bill would also require the Judicial Council to develop any forms
and procedures necessary to implement those provisions.
(2) Existing law permits an order modifying or terminating a
support order to be made retroactive to the date of the filing of the
notice of motion or order to show cause to modify or terminate or to
any subsequent date, except as specified.
This bill would provide that if an order modifying or terminating
a support order is entered due to a change in income resulting from
the activation to military service or National Guard duty and
deployment overseas for either the support obligor or support
obligee, the order shall be made retroactive in accordance with
specified requirements.
The bill would also require the Department of Child Support
Services to work with the military and National Guard to ensure that
information regarding the ability of service members to have support
orders modified based on a change of income is made readily available
to those service members. The bill would additionally require that
department to develop a form for completion by the service member to
allow the local child support agency to proceed with a motion for
modification of a support order without the service member being
required to appear. By placing new duties on local child support
agencies, the bill would impose a state-mandated local program.
(3) Existing law establishes an arrears collection enhancement
process pursuant to which the Department of Child Support Services
may accept offers in compromise of child support arrears and interest
accrued thereon owed to the state for reimbursement of aid paid
pursuant to the California Work Opportunity and Responsibility to
Kids Act (CalWORKs program).
This bill would provide that the acceptance of an offer in
compromise shall be deemed to be in the state's best interest with
regard to arrears that accrued as a result of a decrease in income
when an obligor was a reservist or member of the National Guard, was
activated to military service, and failed to modify the support order
to reflect the reduction in income. The bill would also require the
director of that department to establish specified rules in
accordance with this provision.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3651 of the Family Code is amended to read:
3651. (a) Except as provided in subdivisions (c) and (d) and
subject to Article 3 (commencing with Section 3680) and Sections
3552, 3587, and 4004, a support order may be modified or terminated
at any time as the court determines to be necessary.(b) Upon the
filing of a supplemental complaint pursuant to Section 2330.1, a
child support order in the original proceeding may be modified in
conformity with the statewide uniform guideline for child support to
provide for the support of all of the children of the same parents
who were named in the initial and supplemental pleadings, to
consolidate arrearages and wage assignments for children of the
parties, and to consolidate orders for support.
(c) (1) Except as provided in paragraph
(2) and subdivision (b), a support order may not be
modified or terminated as to an amount that accrued before the date
of the filing of the notice of motion or order to show cause to
modify or terminate.
(2) If a party to a support order is activated to United States
military duty or National Guard service, the service member may file
a notice of activation of military service and request to modify a
support order by informing the court and the other party of the
request to modify the support order based on the change in
circumstance. The service member shall indicate the date of
deployment, and if possible, the court shall schedule the hearing
prior to that date. If the court cannot hear the matter prior to the
date of deployment, the court shall grant a stay of proceedings
consistent with the time lines for stays set forth in Section 522 of
Title 50 of the United States Code.
(d) An order for spousal support may not be modified or terminated
to the extent that a written agreement, or, if there is no written
agreement, an oral agreement entered into in open court between the
parties, specifically provides that the spousal support is not
subject to modification or termination.
(e) This section applies whether or not the support order is based
upon an agreement between the parties.
(f) This section is effective only with respect to a property
settlement agreement entered into on or after January 1, 1970, and
does not affect an agreement entered into before January 1, 1970, as
to which Chapter 1308 of the Statutes of 1967 shall apply.
(g) The Judicial Council shall develop any forms and procedures
necessary to implement paragraph (2) of subdivision (c).
SEC. 2. Section 3653 of the Family Code is amended to read:
3653. (a) An order modifying or terminating a support order may
be made retroactive to the date of the filing of the notice of motion
or order to show cause to modify or terminate, or to any subsequent
date, except as provided in subdivision (b) or by federal law (42
U.S.C. Sec. 666(a)(9)).(b) If an order modifying or terminating a
support order is entered due to the unemployment of either the
support obligor or the support obligee, the order shall be made
retroactive to the later of the date of the service on the opposing
party of the notice of motion or order to show cause to modify or
terminate or the date of unemployment, subject to the notice
requirements of federal law (42 U.S.C. Sec. 666(a)(9)), unless the
court finds good cause not to make the order retroactive and states
its reasons on the record.
(c) If an order modifying or terminating a support order is
entered due to a change in income resulting from the activation to
United States military service or National
Guard duty and deployment overseas for either the support obligor or
the support obligee, the order shall be made retroactive to the later
of the date of the service on the opposing party of the notice of
activa tion, notice of motion, order to show cause to
modify or terminate, or the date of activation, subject to the notice
requirements of federal law (42 U.S.C. Sec. 666(a)(9)), unless the
court finds good cause not to make the order retroactive
and states its reasons on the record.
(d) If an order decreasing or terminating a
support order is entered retroactively pursuant to this section, the
support obligor may be entitled to, and the support obligee may be
ordered to repay, according to the terms specified in the order, any
amounts previously paid by the support obligor pursuant to the prior
order that are in excess of the amounts due pursuant to the
retroactive order. The court may order that the repayment by the
support obligee shall be made over any period of time and in any
manner, including, but not limited to, by an offset against future
support payments or wage assignment, as the court deems just and
reasonable. In determining whether to order a repayment, and in
establishing the terms of repayment, the court shall consider all of
the following factors:
(1) The amount to be repaid.
(2) The duration of the support order prior to modification or
termination.
(3) The financial impact on the support obligee of any particular
method of repayment such as an offset against future support payments
or wage assignment.
(4) Any other facts or circumstances that the court deems
relevant.
SEC. 3. Section 17440 is added to the Family Code , to read:
17440. (a) The Department of Child Support Services shall work
with all branches of the United States military and the National
Guard to ensure that information is made available regarding the
rights and abilities of activated service members to have their
support orders modified based on a change in income resulting from
their activation, or other change of circumstance affecting the child
support calculation.(b) The department shall develop a form for
completion by the service member that will allow the local child
support agency to proceed with a motion for modification without the
service member being required to appear. The form shall contain only
the information necessary for the local child support agency to
proceed with the motion.
(c) Within five business days of receipt of a properly completed
form, the local child support agency shall bring a motion to modify
the support order. The local child support agency shall bring the
motion if the change in circumstances results in any change in the
dollar amount of the support order.
(d) The department shall work with the United States military to
have this form and the form developed pursuant to Section 3651
distributed at all mobilization stations or other appropriate
locations to ensure timely notification to all activated personnel of
their rights and responsibilities.
SEC. 4. Section 17560 of the Family Code is amended to read:
17560. (a) The department shall create a program establishing an
arrears collection enhancement process pursuant to which the
department may accept offers in compromise of child support arrears
and interest accrued thereon owed to the state for reimbursement of
aid paid pursuant to Chapter 2 (commencing with Section 11200) of
Part 3 of Division 9 of the Welfare and Institutions Code. The
program shall operate uniformly across California and shall take into
consideration the needs of the children subject to the child support
order and the obligor's ability to pay.(b) If the obligor owes
current child support, the offer in compromise shall require the
obligor to be in compliance with the current support order for a set
period of time before any arrears and interest accrued thereon may be
compromised.
(c) Absent a finding of good cause, any offer in compromise
entered into pursuant to this section shall be rescinded, all
compromised liabilities shall be reestablished notwithstanding any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise may be refunded, if
either of the following occurs:
(1) The department or local child support agency determines that
the obligor did any of the following acts regarding the offer in
compromise:
(A) Concealed from the department or local child support agency
any income, assets, or other property belonging to the obligor or any
reasonably anticipated receipt of income, assets, or other property.
(B) Intentionally received, withheld, destroyed, mutilated, or
falsified any information, document, or record, or intentionally made
any false statement, relating to the financial conditions of the
obligor.
(2) The obligor fails to comply with any of the terms and
conditions of the offer in compromise.
(d) Pursuant to subdivision (k) of Section 17406, in no event may
the administrator, director, or director's designee within the
department, accept an offer in compromise of any child support
arrears owed directly to the custodial party unless that party
consents to the offer in compromise in writing and participates in
the agreement. Prior to giving consent, the custodial party shall be
provided with a clear written explanation of the rights with respect
to child support arrears owed to the custodial party and the
compromise thereof.
(e) Subject to the requirements of this section, the director may
delegate to the administrator of a local child support agency the
authority to compromise an amount of child support arrears that does
not exceed five thousand dollars ($5,000). Only the director or his
or her designee may compromise child support arrears in excess of
five thousand dollars ($5,000).
(f) For an amount to be compromised under this section, the
following conditions shall exist:
(1) (A) The administrator, director or director's
designee within the department determines that acceptance of an offer
in compromise is in the best interest of the state and that the
compromise amount equals or exceeds what the state can expect to
collect for reimbursement of aid paid pursuant to Chapter 2
(commencing with Section 11200) of Part 3 of Division 9 of the
Welfare and Institutions Code in the absence of the compromise, based
on the obligor's ability to pay.
(B) Acceptance of an offer in compromise shall be deemed to be in
the best interest of the state with regard to arrears that accrued as
a result of a decrease in income when an obligor was a reservist or
member of the National Guard, was activated to United States military
service, and failed to modify the support order to reflect the
reduction in income. The director shall establish rules that
compromise, at a minimum, the amount of support that would not have
accrued had the order been modified to reflect the reduced income
earned during the period of active military service.
(2) Any other terms and conditions that the director establishes
that may include, but may not be limited to, paying current support
in a timely manner, making lump sum payments, and paying arrears in
exchange for compromise of interest owed.
(3) The obligor shall provide evidence of income and assets,
including, but not limited to, wage stubs, tax returns, and bank
statements and establish all of the following:
(A) That the amount set forth in the offer in compromise of
arrears owed is the most that can be expected to be paid or collected
from the obligor's present assets or income.
(B) That the obligor does not have reasonable prospects of
acquiring increased income or assets that would enable the obligor to
satisfy a greater amount of the child support arrears than the
amount offered, within a reasonable period of time.
(C) That the obligor has not withheld payment of child support in
anticipation of the offers in compromise program.
(g) A determination by the administrator, director or the director'
s designee within the department that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of child support arrears shall be final and not subject
to the provisions of Chapter 5 (commencing with Section 17800) of
Division 17, or subject to judicial review.
(h) Any offer in compromise entered into pursuant to this section
shall be filed with the appropriate court. The local child support
agency shall notify the court if the compromise is rescinded pursuant
to subdivision (c).
(I) Any compromise of child support arrears pursuant to this
section shall maximize to the greatest extent possible the state's
share of the federal performance incentives paid pursuant to the
Child Support Performance and Incentive Act of 1998 and shall comply
with federal law.
(j) The department shall ensure uniform application of this
section across the state.
(k) The department shall consult with the Franchise Tax Board in
the development of the program established pursuant to this section.
(l) The department shall report to the Legislature on the results
of the program established pursuant to this section no later than
June 30, 2006.
(m) This section shall remain in effect only until January 1,
2007, and as of that date is repealed unless a later enacted statute,
that is enacted before January 1, 2007, deletes or extends that
date.
SEC. 5.
If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part
7 (commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.