BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1482|
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UNFINISHED BUSINESS
Bill No: SB 1482
Author: Wright (D)
Amended: 8/2/10
Vote: 21
SENATE VOTES NOT RELEVANT
SENATE JUDICIARY COMMITTEE : 5-0, 8/12/10
AYES: Corbett, Harman, Hancock, Leno, Walters
ASSEMBLY FLOOR : 71-0, 08/05/10 - See last page for vote
SUBJECT : Spousal support: modification: change of
circumstances
SOURCE : Family Law Section of the State Bar (FlexCom)
DIGEST : As it left the Senate, this bill made
corrections to an erroneous cross-reference contained in
the California Lottery Act of 1984.
This bill now extends by three years, the sunset date on
the provision regarding change of circumstances that may be
the basis for a request for modification of spousal
support. This bill also enumerates specified circumstances
in which termination of the child support order does not
constitute a change of circumstances.
ANALYSIS : Existing law:
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1.Authorizes the court, in a judgment of dissolution of
marriage or legal separation, to order one party to pay
spousal support to the other party in an amount and for a
duration that the court deems just and reasonable based
on the standard of living established during the
marriage.
2.Imposes on parents a duty to support an unmarried child
who has not attained the age of 18 years. For a child
who has attained the age of 18 years, but is still a
full-time high school student and is not self-supporting,
the duty of support is extended until the time the child
completes the 12th grade or attains the age of 19 years,
whichever occurs first.
3.Prohibits, until 2008, a court from considering the
termination of a child support order by operation of law
as a change of circumstances warranting a request for
modification of spousal support. ( In re Marriage of
Lautsbaugh (1999) 72 Cal. App. 4th 1131.)
4.Provides, commencing in 2008 until January 1, 2011, that
in a proceeding in which a spousal support order exists
or in which the court has retained jurisdiction over a
spousal support order, if a companion child support order
is in effect, the termination of child support shall
constitute a change of circumstances that may be the
basis for a request for modification of spousal support.
5.Provides that in a proceeding for dissolution of marriage
or for legal separation, the court may order a party to
submit to an examination by a vocational training
counselor upon a noticed motion, for good cause, by one
of the parties.
This bill:
1.Extends by another three years the sunset date for the
provision which provides that in a proceeding in which a
spousal support order exists or in which the court has
retained jurisdiction over a spousal support order, if a
companion child support order is in effect, the
termination of child support shall constitute a change of
circumstances that may be the basis for a request for
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modification of spousal support.
2.Requires that a motion to modify spousal support on the
basis of the change in circumstances caused by the
termination of a child support order be filed within six
months of the termination of the child support order.
3.Authorizes either party to request the appointment of a
vocational training counselor if a motion to modify
spousal support on that basis is filed.
4.Bars the availability of this "automatic" change of
circumstances doctrine in cases that resolve pursuant to
a stipulated marital settlement agreement, in order not
to discourage settlements of family law disputes at the
time of dissolution.
Comments
According to the Assembly Judiciary Committee analysis,
this non-controversial family law bill addresses those
family law cases where a child support order terminates by
what is called "operation of law," which typically results
when the child or children reach the age of majority and
are no longer entitled to support. Prior to 2008, where
some or no spousal support was in effect when a child
support order ended, the termination of the child support
order by operation of law did not automatically allow the
party who had received the child support to go back to
court to seek either new spousal support (if they had not
been receiving it already) or an increase in an existing
order of spousal support. Under this traditional approach
prior to 2008, other supporting facts, constituting a
so-called "change of circumstances," were required before
the spouse seeking new or additional spousal support was
permitted to return to court to seek new or additional
spousal support.
However, in the 2007 legislative session, Senator Harman
carried SB 415 (Chapter 247, Statutes of 2007) on behalf of
the Family Law Section of the State Bar (FlexCom) which
altered the traditional rule on an experimental basis to
allow a party to "automatically" be permitted to seek new
or modified spousal support when a child support order
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terminates. That bill was "sunsetted" after three years to
allow time to see whether the process led to increased
family law litigation or other impacts. That sunset ends
this year, and the author introduced this legislation at
FlexCom's request to extend the bill.
This bill, in addition to extending the sunset for three
more years, reasonably limits the availability of such
"automatic" spousal support request cases to those cases
that are filed within six months from the date the child
support order terminated, in the interest of fairness and
certainty. In addition, the bill adds a new provision
permitting in such "automatic" spousal support request
cases either party to request the appointment of a
vocational training counselor. This is consistent with the
approach taken with spousal support requests at the initial
dissolution proceedings. Finally, again as proposed to be
amended, the extended law will not be available in cases
that resolve pursuant to a stipulated marital settlement
agreement, in order not to discourage settlements of family
law disputes at the time of dissolution.
Prior Related Legislation
SB 415 (Harman), Chapter 247, Statutes of 2007, provides
that in a proceeding in which a spousal support order
exists and a companion child support order is in effect,
the termination of child support by operation of law shall,
contrary to historical approach, itself constitute a change
of circumstances that may be the basis for a request for
modification of spousal support.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/6/10)
Family Law Section of the State Bar (FlexCom) (source)
ARGUMENTS IN SUPPORT : FlexCom writes in support of this
bill:
This amendment is a result of the opinion in Kacik v.
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Kacik (2009) 179 Cal.App.4th 410, where the court
stated: "Because of the unusual circumstance of
construing a piece of legislation that has less than
18 months before it sunsets, we address the
Legislature directly: Section 4326 is scheduled to
terminate on January 1, 2011. If you decide to renew
it, please consider saying exactly what you mean by
'is in effect.' One easy solution: Specify a time
frame around the termination date of child support:
say, plus or minus six months, when a spousal support
modification request based on the termination of child
support may be filed."
The six month filing deadline for a party to file a
motion to modify spousal support based on the change
of circumstances outlined in Section 4326 is supported
by current law. Six months is the time-frame stated
in the Code of Civil Procedure Section 473 to file a
motion to set aside an order or judgment; six months
is the deadline in Family Code Section 3690 and 3691
to set aside a support order; and six months is the
timeline suggested by the court in Kacik v. Kacik .
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Tom Berryhill, Block, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Conway, Cook, Coto, De La
Torre, De Leon, DeVore, Eng, Evans, Feuer, Fong, Fuentes,
Fuller, Gaines, Galgiani, Garrick, Gatto, Gilmore,
Hagman, Hall, Harkey, Hayashi, Hernandez, Huber, Huffman,
Jeffries, Jones, Knight, Logue, Bonnie Lowenthal, Ma,
Mendoza, Miller, Monning, Nava, Nestande, Niello,
Nielsen, Norby, Portantino, Ruskin, Salas, Saldana,
Silva, Skinner, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, John
A. Perez
NO VOTE RECORDED: Blakeslee, Davis, Fletcher, Furutani,
Hill, Lieu, V. Manuel Perez, Smyth, Vacancy
TSM:nl 8/9/10 Senate Floor Analyses
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SUPPORT/OPPOSITION: SEE ABOVE
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