BILL ANALYSIS SENATE JUDICIARY COMMITTEE Martha M. Escutia, Chair 2003-2004 Regular Session SB 1407 S Senator Kuehl B As Introduced Hearing Date: April 27, 2004 1 Family Code 4 KH 0 7 SUBJECT Community Property: Separate Property Contributions DESCRIPTION Existing law allows a spouse to be reimbursed for separate property contributions to community property, and allows the community to be reimbursed for contributions to the separate property of one spouse. However, there is no provision for allowing a spouse to be reimbursed for separate property contributions to the separate property of the other spouse. This bill would allow reimbursement for separate property contributions of one spouse to the other spouse's separate property assets or debts, unless there is a writing making the contribution a gift. The proposed right to reimbursement would be without interest or adjustment for change in monetary values. BACKGROUND Existing law permits reimbursement to a spouse or the community in certain circumstances. In 2001, a California Court of Appeal declined to extend the right of reimbursement to other circumstances absent express statutory authorization. (See Comment 1.) The Conference of Delegates of California Bar Associations passed a resolution recommending that legislation be (more) SB 1407 (Kuehl) PageB sponsored to amend Family Code Section 2640. The State Bar of California, Family Law Section unanimously approved the proposed statutory language and is co-sponsoring the bill. CHANGES TO EXISTING LAW Existing law provides that the community estate acquires a pro tanto quasi-ownership stake in one spouse's separate property to the extent community funds contributed to the equity in the spouse's separate property. The community estate acquires its stake for payments made to reduce an encumbrance on separate property and capital improvements to separate property, but not payments made for taxes, interest or maintenance. [The so-called "Moore/Marsden rule," from Marriage of Moore (1980) 28 Cal.3d 366, 373-374 and Marriage of Marsden (1982) 130 Cal.App.3d 426, 438-440; Marriage of Allen (2002) 96 Cal.App.4th 497, 502; Marriage of Wolfe (2001) 91 Cal.App.4th 962, 928-929 (reimbursement for amount of improvement, not pro tanto interest in enhanced value resulting therefrom).] Existing law authorizes reimbursement for separate property contributions to the acquisition of community property (equity in the community property), unless a writing expressing the intent to make a gift or waiving the right to reimbursement has been executed. The spouse who contributed separate property is entitled to reimbursement for payments made to reduce an encumbrance on community property and capital improvements to community property, but not payments made for taxes, interest, insurance or maintenance. The amount reimbursed is without interest or adjustment for change in monetary values. The amount reimbursed shall not exceed the net value of the property at the time of the division. [Fam. Code Sec. 2640.] This bill would authorize reimbursement for separate property contributions to the separate property estate, including assets or debts, of the other spouse, unless a writing expressing the intent to make a gift or waiving the right to reimbursement has been executed. This bill, like existing law, would state that the amount reimbursed is SB 1407 (Kuehl) PageC without interest or adjustment for change in monetary values. This bill would, unlike existing law, apply to any contributions from the separate property estate of one spouse to the separate property estate of the other spouse, not only those contributing to the equity of an asset. The extent of reimbursement would not be limited by the net value of the property at the time of the division, and reimbursement would be required even when there is no asset involved, such as for payments made on a pre-existing tax liability or consumer debts. COMMENT 1.Stated need for the bill Co-sponsor Sacramento County Bar Association states: Since the adoption into law of Family Code section 2640, the Legislature and courts have determined that the pre-existing theory, that any contribution of separate property by one spouse to the community or by the community to one spouse's separate property was a "gift" and therefore not subject to reimbursement, was not viable or accurate in today's society. If this is true, then contributions by one spouse, after marriage, to the separate property estate of the other spouse should not be viewed as a "gift" and be reimbursed if no written waiver, per Section 2640, exists. In the case Marriage of Cross (2001) 94 Cal.App.4th 1143, husband expended approximately $40,000 of his separate property money for capital improvements to the residence, which was wife's separate property. Upon dissolution, husband sought reimbursement for the $40,000 and relied on Family Code Section 2640. The court denied his request and the appellate court affirmed, stating: SB 1407 (Kuehl) PageD Both the clear language of the statute and the cases interpreting it address situations where one spouse has used his or her separate property to purchase or improve community property. Nothing in section 2640 gives one spouse a right of reimbursement for separate property contributions made to the other spouse's separate property. If the Legislature had intended to give a spouse a right to reimbursement for separate property contributions made to the other spouse's separate property, the Legislature could have included language to achieve this intent. It did not. [94 Cal.App.4th at 1147 (emphasis in original).] 2.Concern regarding inconsistent policies created by bill and potentially unjust results a. Reimbursment right created by bill inconsistent with limited circumstances under which reimbursement is currently permitted The Family Law Section of the Los Angeles County Bar Association comments: As presently drafted, SB 1407 grants too broad a right of reimbursement and would appear, for example, to permit reimbursement for separate property contributions for such expenses as interest, maintenance, insurance and taxes, items for which reimbursement is not currently allowed under Family Code Section 2640. If SB 1407 as presently drafted indeed grants such a broad reimbursement right, it goes too far beyond the definition of "contributions to the acquisition of property" currently set forth in Family Code Section 2640(a) and would permit undeserved windfall reimbursements out of harmony with Family Code Section 2640 and current case law. The Family Law Section of the Los Angeles County Bar Association states that if the bill were amended to limit the type of reimbursement permitted to be consistent with Family Code Section 2640 and current case law, it would "withdraw [its] present opposition" and view SB 1407 SB 1407 (Kuehl) PageE . . . as a needed and appropriate logical extension of California's current "right of reimbursement" law as represented by Family Code Section 2640 and the relatively recent cases of In re Marriage of Wolfe and In re Marriage of Allen . . . [holding the] community is entitled to reimbursements for community property funds used to make improvements on one spouse's separate property . . . . [Citations omitted.] As a practical matter, SB 1407 if amended as here recommended would close a hole in the area of "reimbursements" that has somehow not been previously clearly addressed by either statute or case law, and it would be a worthy statutory fix enabling some divorcing party to save the expense of having to establish by litigation the very same "reimbursement" result statutorily granted by SB 1407 amended as here recommended. SHOULD NOT THE BILL BE NARROWED, AS RECOMMENDED ABOVE? b. Reimbursment right created by bill inconsistent with statutory spousal support duty When the Conference of Delegates of California Bar Associations considered Resolution (8-05-2003), identical (after amended) to SB 1407, the Bar Association of Northern San Diego County stated as a counterargument to the Resolution: This resolution attempts to create a category of rights and liabilities distinct from those common to marriage and existing domestic partnership by hand-picking certain privileges from both bodies of law and deleting basic liabilities common to both, such as a support obligation. Eliminating obligations would gut the domestic partnership laws and would leave the domestic partner with the least bargaining power unprotected. This comment appears to be related to the statutory spousal support duty under Family Code Sections 4300 and 4301: "Subject to this division [(Fam. Code Sec. SB 1407 (Kuehl) PageF 3500 et seq.)], a person shall support the other person's spouse" [Fam. Code Sec. 4300]; and " . . . a person shall support the person's spouse while they are living together out of the separate property of the person when there is no community property or quasi-community property" [Fam. Code Sec. 4301]. SB 1407 appears to create a right to reimbursement for contributions from one spouse's separate property to the other spouse's separate asset or debt in the case when there is no community property or quasi-community property that could pay for the other spouse's separate asset or debt, despite the fact that Family Code Section 4301 requires the expense from the one spouse's separate property as an obligation and does not create a right to reimbursement. (In contrast to Family Code Section 4301, Family Code Section 914(b) (liability of a spouse's separate property for "necessaries of life" debts of the other spouse incurred during marriage) does not require the exhaustion of the community estate before the nondebtor spouse's separate property may be reached by a third party creditor, and expressly permits reimbursement for separate property funds used only to the extent community or separate property of the debtor spouse was available but not used. Family Code Section 920(c) provides that a right of reimbursement provided by Part 3 (commencing with Section 900) is limited to a three-year enforceability period, or less if a dissolution occurs before the end of the three-year period. SB 1407 has no limitations period.) c. Hardships or potential inequities could result from application of bill as written The California Judges Association (CJA) orally informed Committee staff of its opposition to the bill, but as of Friday, April 23, 2004, no letter had been received. Through a member judicial officer, CJA expressed concern that expanding the right to reimbursement beyond the circumstances presently permitted under the SB 1407 (Kuehl) PageG case law and Family Code Section 2640 could be inequitable and create hardship. For example, in a divorce involving no assets, only liabilities (which is common), if early in the marriage husband used separate property assets to pay pre-marriage consumer debt of wife totaling $10,000, and the couple divorces when both spouses are retired and living on limited income, wife would owe to husband $10,000 in addition to owing 50 percent of the community's debts. Wife could be burdened with the debt with no source of income to repay husband. Family Code Section 2640 limits the separate property reimbursement to amounts contributed to the acquisition of property, and caps reimbursement at the net value of the property at the time of division, which ensures that there is a source for repayment of the contribution and protects the community from liability exceeding the net value of asset. California Judges Association proposes that if the intent of the bill is to correct the problem stated in Marriage of Cross (which concerned husband's separate property contribution for capital improvements to wife's separate property house), Family Code Section 2640 should be extended: i. only to allow reimbursement for payments made to reduce an encumbrance on the other spouse's separate property and capital improvements to the other spouse's separate property, but not payments made for taxes, interest, insurance or maintenance; <1> and ii. in addition to the amount reimbursed being without interest or adjustment for change in monetary values as stated in Family Code Section 2640(b) and SB 1407, reimbursement should only be available: A. if the asset to which contributions were --------------------- <1> The amendments suggested by the Family Law Section of the Los Angeles County Bar Association, above, would address CJA's concern on this issue. SB 1407 (Kuehl) PageH made is still part of the other spouse's separate property estate (in which case the amount reimbursed should not exceed the net value of the property at the time of the division), or B. if the asset to which contributions were made is no longer part of the other spouse's separate property estate but the proceeds of the asset are now traceable to some other asset of the other spouse's separate property estate (in which case the amount reimbursed should not exceed the net value of that asset at the time of the division). 1.Supporters assert difference in policies is appropriate Supporters of SB 1407 acknowledge that the rule created by SB 1407 for dealing with a separate property contribution to the separate property of the other spouse is different than existing rules governing a separate property contribution to pay a community debt. Supporters contend that limitations on reimbursement of separate property of one spouse used to benefit the community is due to the fact that the debts and responsibilities of the community are also obligations of that spouse and that, therefore, the spouse using separate property for the benefit of the community is receiving a direct partial benefit. Supporters assert that allowing 100 percent reimbursement of the separate property for payment of a community debt would to some extent result in unjust enrichment. Supporters offer that partial liability is not the case when the separate property of one spouse is used for the benefit of the separate property of the other spouse, and states that 100 percent reimbursement in this circumstance is appropriate because the spouse giving the property receives no benefit, and the spouse receiving the property will retain all the benefit after the marriage ends. Supporters offer the following example: if husband owes $10,000 on a car that is his separate property, and he wants to retain the car as his separate property during the marriage, he will have to pay the debt on the car with funds from some source other than his wages and salary, such as funds from a gift or an SB 1407 (Kuehl) PageI inheritance. If wife uses funds from her separate property to pay the $10,000 debt on the car, which will still remain the separate property of husband because no community property assets were used, at the time of dissolution husband will not only have the car, but the entire $10,000 left in some separate account. Reimbursing 100 percent of the separate property of wife leaves husband in the same position as if he had used his own separate property to pay the $10,000 in the first place, which he would have had to have done in order to maintain the character of the car as his separate property. In fact, even if husband is required to reimburse wife the entire $10,000, he is still in a better position because he will keep any interest earned on the $10,000 up to the time of the dissolution. Supporters contend that for this reason, allowing for 100 percent reimbursement of separate property used to benefit the separate property of the other is entirely fair and reasonable. Support: None Known Opposition:Los Angeles County Bar Association, Family Law Section (support if amended); California Judges Association HISTORY Source: The State Bar of California, Family Law Section; Conference of Delegates of California Bar Associations; Sacramento County Bar Association Related Pending Legislation: None Known Prior Legislation: None Known **************