BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015 - 2016 Regular Session SB 28 (Wieckowski) Version: December 1, 2014 Hearing Date: May 5, 2015 Fiscal: No Urgency: No NR SUBJECT Spousal support factors: domestic violence conviction DESCRIPTION Existing law requires that in any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence, as specified, there is a rebuttable presumption that any award of spousal support to the abusive spouse should not be made. This bill would provide that a plea of nolo contendere would constitute a criminal conviction for the purposes of spousal support. BACKGROUND 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 SB 28 (Wieckowski) Page 2 of ? 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. This bill would provide that, for charges of domestic violence, a plea of no contest shall be treated as a criminal conviction for the purposes of spousal support. CHANGES TO EXISTING LAW Existing law provides, in addition to any other remedy, when a spouse is convicted of attempting to murder the other spouse, or soliciting the murder of the other spouse, the convicted spouse shall be prohibited from receiving any temporary or permanent award of spousal, medical, life or other insurance benefits or payments from the injured spouse. (Fam. Code Sec. 4324.) Existing law provides, in addition to any other remedy authorized by law, that when a spouse is convicted of attempting to murder the other spouse, or of soliciting the murder of that spouse, the injured spouse is entitled to all the community property interest in the retirement and pension benefits of the injured spouse. (Fam. Code Sec. 782.5.) Existing law provides that in any proceeding for dissolution of a marriage, where there is a criminal conviction for a violent sexual felony perpetrated by one spouse against the other, an award of spousal support to the convicted spouse is prohibited. Existing law further authorizes that when one spouse is convicted of a violent sexual felony against the other, the court to order attorney fees be covered out of community property assets, and provides that the injured spouse is entitled to 100 percent of his or her interest in pension or retirement benefits. (Fam. Code Sec. 4326.) 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.) SB 28 (Wieckowski) Page 3 of ? Existing law 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 a dissolution of the marriage, or any time thereafter. (Fam. Code Sec. 4325.) This bill would provide that a plea of nolo contendere would constitute a criminal conviction for the above purposes. COMMENT 1.Stated need for the bill 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. A spouse tried to exploit this precise ambiguity In re Marriage Priem, (1st Dis. 2013) 214 Cal.App.4th.505, to receive spousal support even though she had a documented history of committing domestic violence against her husband. This bill will eliminate the ambiguity and stop more cases like Priem being brought in other jurisdictions. 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 while ensuring a spouse who pleaded no contest to committing domestic violence is treated the same as a spouse who pleaded, or was found, guilty. SB 28 (Wieckowski) Page 4 of ? 2.Presumption against spousal support effectively creates a prohibition for self-represented litigants Generally, pleas of nolo contendere are not deemed conclusive in subsequent civil proceedings as admissions of wrongdoing. Even in civil actions where a plea of nolo contendere is admissible, the party is traditionally 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 because such a plea necessarily implies a bargain and is seen as an agreement between the prosecution and the defendant. A party seeking spousal support in a divorce, who has been convicted of domestic violence within the past five years, must overcome a presumption against the award of support. That party may rebut the presumption against by providing documented evidence of his or her history as a victim of domestic violence, perpetrated by the other spouse, or any other factors the court deems just and equitable. This bill would provide that a plea of nolo contendere would constitute a criminal conviction for the purposes of spousal support, and thus, apply that presumption against an award of support to that plea. Accordingly, this bill would require persons who have previously plead no contest to domestic violence charges to overcome that presumption in any subsequent divorce action before qualifying for spousal support. Currently in California, approximately 85 percent of family law litigants are self-represented. Among the persons seeking spousal support, that percentage is even higher. Arguably, requiring self-represented litigants to submit additional evidence, subject to complex rules of evidence, effectively acts as a bar to spousal support. To address this issue, the amendment below (see Comment 3) would ensure that the court considers pleas of no contest to domestic violence charges in issuing a fair and equitable spousal support award, but would not require a party to rebut a presumption against support. 3."No fault" divorce system in California By creating a presumption against an award of spousal support to a spouse who has previously pleaded no contest to a charge of domestic violence, this bill would create an exception to the general policy in California, which is a "no fault" divorce state. A no fault divorce policy allows either party to file SB 28 (Wieckowski) Page 5 of ? for dissolution without the need to prove fault by the other spouse. Hence, courts do not punish a party for wrong doing, such as an affair, by awarding the other spouse more spousal support or community property. An article from the Cincinnati Law Review describes the importance of the no-fault divorce system for women: Having to prove grounds in order to obtain a divorce was traditionally mired with rigid hierarchical notions of male and female gender roles, and divorce has too often been awarded in a discriminatory fashion. Moreover, feminists aspiring to formal equality and fighting women's traditional dependence on men have supported allowing either party to a marriage to exit if they so choose without having to prove or contrive the existence of fault. (Laufer-Ukeles, Pamela, Reconstructing Fault: the Case for Spousal Torts, (2010) 79 U. Cin. L. Rev. 207.) Accordingly, 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. (See Marriage of Askmo (2000) 85 Cal.4th 1032.) 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 standard of living established during the marriage. (Fam. Code Sec. 4330(a).) 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, a history of domestic violence between the parties, including convictions resulting from that violence, and the ability of each party to engage in employment considering the interests of dependent children. (Fam. Code Sec. 4320.) As a result, courts are given broad discretion in determining spousal support awards because of the complexity of the factors that must be considered and the individual circumstances of the parties and families involved. Because courts often issue mutual restraining orders in domestic violence situations when a party was actually protecting herself in self-defense, and pleas of nolo contendere are not equivalent to an admission of guilt do not require that any evidence be presented at trial to support the charge, this bill could negatively impact women, who were actually victims of domestic violence, from being awarded spousal support. In this way, by restricting a court's ability SB 28 (Wieckowski) Page 6 of ? to apply discretion to parties' unique situations, this bill could have the unintentional consequence of limiting the court's ability to create fair and equitable orders. To address this issue, the following amendment would instead provide that a court shall consider a plea of nolo contendere in awarding spousal support, which will allow the court to exercise discretion in the awarding of spousal support. Author's amendments: 1. On page 2, strike lines 12-14 inclusive 2. Family Code Section 4320(i) is amended to read: (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including pleas of nolo contendere, or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. 1.Authority to deny spousal support award under existing law Existing law restricts a court's ability to award spousal support only in a handful of situations. First, when a spouse is convicted of attempted murder of a spouse, no award of spousal support is available to the convicted spouse. (Fam. Code Sec. 4324.) Secondly, when a spouse is convicted of a violent sexual felony against the other spouse, as specified, the convicted spouse is prohibited from receiving an award of spousal support. (Fam. Code Sec. 4324.5.) When a spouse is convicted of domestic violence against the other, a presumption is created against an award of spousal support to the convicted spouse. (Fam. Code Sec. 4325.) Finally, in ordering a spousal support award, a court is required to consider any documented evidence of any history of domestic violence between the parties or against either party's child. (Fam. Code Sec. 4320(i).) Under this last consideration, the court clearly has the authority to take into account a plea of no contest to a domestic violence charge when determining what is a just and equitable spousal support award. However, the family court SB 28 (Wieckowski) Page 7 of ? cannot take mere allegations of abuse, without proof, into consideration in determining spousal support. Pleas of no contest technically result in a conviction, but without any evidence having been presented at court. There are a variety of reasons to plead no contest, many of which do not involve guilt. An individual with no prior criminal history may plead no contest simply to resolve the matter quickly and avoid the inconvenience of trial. In the event of mutual restraining orders, a woman may have been charged with domestic violence while attempting to protect herself in self-defense. The fact that she does not want to relive her abuse through evidence presented at trial should not be a reason to make her overcome additional hurdles in order to be awarded spousal support. Arguably, the vast majority of divorces are contentious, and parties may accuse each other of various acts. Thus, that a court cannot act without proof serves to protect parties from spurious accusations. The amendment (see Comment 2) would allow a court to look into the reasons why a party plead no contest to a domestic violence charge, without requiring that party to present additional evidence at trial, and issue a fair spousal support award for the parties' unique situation. Support : Asian Americans for Community Involvement; California Partnership to End Domestic Violence Opposition : None Known HISTORY Source : Author Related Pending Legislation : None Known 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. SB 28 (Wieckowski) Page 8 of ? AB 2674 (Block, Chapter 65, Statutes of 2010) prohibits an 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) provides 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. **************