BILL ANALYSIS
SB 509
Page 1
Date of Hearing: June 19, 1996
ASSEMBLY COMMITTEE ON JUDICIARY
Bill Morrow, Chair
SB 509 (Calderon) - As Amended: June 6, 1996
SENATE VOTE: Floor: 40-0
SUMMARY: Expands the list of circumstances to be considered in
ordering spousal support. Specifically, this bill:
1) Makes the failure of a supported spouse to make reasonable,
good faith efforts to become self-supporting as soon as is
reasonably possible a change of circumstances for purposes of
modification or termination of the spousal support order.
2) Adds that the following factors to the list of factors to be
considered by the court in ordering spousal support:
a. The balance of the hardships to each party.
b. The goal that the supported party shall be self-supporting
after a reasonable period of time, which generally shall be no
greater than one-half of the duration of the marriage.
3) Directs that every order for spousal support contain the
following admonition:
"It is the goal of this state that each party shall become
self-supporting as soon as is reasonably possible, so that the
failure to make reasonable, good faith efforts to do so shall
be considered a change of circumstances and may be the basis
for an order modifying support downward or terminating
support."
FISCAL EFFECT: Unknown
EXISTING LAW:
1) A person shall support his or her spouse while they are living
together. (Family Code ?4300.)
2) A person is not liable for support of the person's spouse when
the person is living separate from the spouse by agreement
unless support is stipulated in the agreement. (Family Code
?4302.)
3) Spousal support may be ordered either during the pendency of
an action or within the judgment of dissolution or legal
separation. (Family Code ?3600 and ?4330.)
4) Absent an agreement to the contrary, spousal support may be
modified or terminated at any time the court determines it
necessary. (Family Code ?3651.)
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5) In a judgment of dissolution or legal separation, the court
may deny
support to a party out of the separate property of the other party
in any of the following circumstances:
a. The party has separate property, or is earning the party's
own livelihood, or there is community property or
quasi-community property sufficient to give the party proper
support.
b. The custody of the children has been awarded to the other
party, who is supporting them. (Family Code ?4321.)
6) There shall be no award of spousal support where there are no
children and the other party's separate estate is sufficient
for the party's proper support. (Family Code ?4322.)
7) Except as otherwise agreed in writing, there is a rebuttable
presumption, affecting the burden of proof, of decreased need
for spousal support if the supported party is cohabitating
with a person of the opposite sex. (Family Code ?4323(a).)
8) The income of a supporting spouse's subsequent spouse or
nonmarital partner shall not be considered when determining or
modifying spousal support. (Family Code ?4323(b).)
9) The court may order a party to submit to an examination by a
vocational training counselor. The examination shall include
an assessment of the party's ability to obtain employment
based upon the party's age, health, education, marketable
skills, employment history and the current availability of
employment opportunities. The focus shall be on an assessment
of the party's ability to obtain employment that would allow a
party to maintain himself or herself at the marital standard
of living. (Family Code ?4331 (a).)
10) Spousal support terminates at the end of the period provided
in the order and shall not be extended unless the court
retains jurisdiction in the order. (Family Code ?4335.)
11) Except upon written agreement of the parties or order of the
court, the court retains jurisdiction indefinitely in a
proceeding for dissolution of marriage or for legal separation
of the parties where the marriage is of long duration i.e., 10
years or more. (Family Code ?4336 (a) and (b).)
12) Even in marriages of long duration, nothing limits the court's
discretion to terminate spousal support in later proceedings
on a showing of changed circumstances. (Family Code
?4336(c).)
13) In ordering spousal support, the court shall consider, among
other enumerated factors, the following circumstances:
(Family Code ?4320.)
a. The extent to which the earning capacity of each party is
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sufficient to maintain the standard of living established
during the marriage, taking into account all of the following:
i. The marketable skills of the supported party, the time
and expenses required for the supported party to acquire
appropriate education or training; and the possible need
for re-training or education to acquire other, more
marketable skills.
ii. The extent to which the supported party's earning
capacity, or future earning capacity, is impaired by
periods of unemployment that were incurred during the
marriage in order to permit the supported party to devote
time to domestic duties.
b. The extent to which the supported party contributed to the
attainment of an education, training, a career position, or a
license by the supporting party.
c. The ability to pay of the supporting party, taking into
account the supporting party's earning capacity, earned and
unearned income, assets and standard of living.
d. The needs of each party based on the standard of living
established during the marriage.
e. The obligations and assets, including the separate
property of each party.
f. The duration of the marriage.
g. The ability of the supported party to engage in gainful
employment without unduly interfering with the interests of
the dependent children in the custody of the party.
h. The age and health of the parties.
i. The immediate and specific tax consequences to each party.
j. Any other factors the court determines are just and
equitable.
BACKGROUND:
1) The U. S. Census Bureau (Census) reports that in 1990, of the
20.6 million divorced or currently separated women, 15.5% were
awarded spousal support. The Census also reports that the award
rate for women 40 years of age and older was about twice that of
women under age 40. No statistics were available on the number of
men awarded spousal support.
2) According to "Information Plus, Women's Changing Role" (1994
Edition):
a. The Bureau of Labor Statistics (WDC, November 1993) reports
that in 1993, 31.5 million married women were in the labor
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force, three and a half times the almost 9 million in 1950.
Currently 57% of all married women over 16 years of age are
employed.
b. In 1993, 74% of all women in the workforce were in their
child bearing years (18 to 44.)
c. About 9 million wives, or 29% of the total married couples
in which both spouses worked, earned more than their husband's
in 1991.
d. In 1992, the Bureau of the Census compared men's and
women's weekly earnings (fourth quarter 1992, "Employment in
Perspective: Women in the Labor Force," WDC). The differences
between men's and women's salaries differ significantly by age.
Younger women earn 94% of what same-age men earned. Older
women generally earned less, dropping as low as about 65% of
men's earnings in the 45 to 65 year old age range.
e. The U.S. Department of Labor, in "Women Workers: Outlook to
2005" (1992, Facts on Working Women, WDC), predicted that of
the 26 million person net increase in the labor force between
1990 and 2005, women will account for 15 million, or 62% of
that growth. In 2005 women will account for 47% of the labor
force compared to 42% in 1980 and 45% in 1990.
ARGUMENTS IN SUPPORT: The Coalition of Parent Support states that
this bill retains judicial discretion and the current list of
circumstances to be considered by a judge when deciding the
initial amount of spousal support or modification. This bill
allows a judge to modify or terminate a spousal support order if
an individual chooses not to make a reasonable, good faith effort
to become self-supporting within a reasonable period of time.
Current law does not take into consideration the societal changes
which have occurred over the last 20 years. Both men and women
find themselves supporting former spouses without any indication
that the former spouse will ever be self-supporting. In some
instances, current law appears to discourage self-sufficiency and
encourage dependency.
ARGUMENTS IN OPPOSITION: The Coalition For Family Equity argues
that there is no evidence that this bill is necessary. On the
contrary, divorced women, particularly those with custody of
children, have plenty of motivation to get jobs as soon as they
can, in order to avoid poverty.
The Judicial Council opposes this bill unless amended. It argues
that this bill substantially constricts the courts' discretion in
making spousal support decisions and inappropriately constrains
the court when ordering the duration of support. It is not an
appropriate extension of case law, in that the stated language
regarding "one-half of the term of the marriage", is a rule of
thumb applied to those marriages lasting less than 10 years.
A law professor argues that this bill is both unnecessary and
counterproductive. California law already seeks "rehabilitation"
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for divorcing spouses who can enhance their incomes through
training and authorizes vocational evaluations to assess the
feasibility of this approach. A possible interpretation of the
bill's "self-support" standard could lead to support terminations
because the applicant earns enough to stay out of a homeless
shelter, but not enough to survive at a level appropriate for the
person's age, education, or martial history. In addition, this
bill contains a totally arbitrary goal for award duration. It
also creates inequity for many women in short-term marriages who
have sacrificed to accommodate their husbands' careers.
COMMENTS:
1) The Family Law Quarterly of the American Bar Association,
states: "Although courts are more likely to give long-term or
permanent alimony awards after longer marriages, it appears that a
long-term marriage is not a guarantee of long-term maintenance
[spousal support]. Rehabilitative maintenance remains a popular
choice for judges when the dependent spouse can become self
supporting." (Winter, 1995)
"In shorter-term marriages or when the spouse has the potential
for self-support, many courts award rehabilitative maintenance.
Even Texas now authorizes rehabilitative maintenance. Where,
however, a spouse is unable to be self-supporting due to
illness or age and educational level, appellate courts have
indicated that more permanent spousal support is
appropriate." (Winter, 1996.)
2) The states are split relatively evenly with regards to whether
"Martial Fault" is a relevant factor in determining spousal
support. California currently belongs to the group of states
which does not have as a statutory factor "Marital Fault" in
determining spousal support.
3) Contained in the letters of support from individuals (both men
and women), there were incidents illustrating a need to change
the current spousal support laws due to inequities.
REGISTERED SUPPORT / OPPOSITION:
Support Opposition
Coalition of Parent Support Judicial Council
Individuals (26) Coalition For Family Equity
Individual (1)
Neutral
California District Attorneys
Assoc.
Analysis prepared by: Scott B. Frizzie / ajud / (916) 445-4560