BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 391 A
Assembly Member Jackson B
As Amended April 29, 1999
Hearing Date: August 17, 1999 3
Family Code 9
GMO 1
SUBJECT
Spousal Support: Factors to Consider
DESCRIPTION
This bill would:
Establish that the goal that the supported spouse become
self-supporting be based on the standard of living
established during the marriage;
Exempt marriages of long duration (10 years or more,
under Family Code Section 4336) from the marriages for
which a "reasonable length of time" to attain the goal
of becoming self-supporting is defined as one-half the
length of the marriage; and
Eliminate the statutorily required Gavron warning, an
admonition given by a court ordering spousal support or
reserving jurisdiction over the issue of support, that
the supported party must make reasonable good faith
efforts to become self-supporting.
BACKGROUND
SB 509 (Calderon), Ch. 1163, Stats. 1996, enacted into the
Family Code the goal to become self-supporting as one of
the factors for a court to consider when ordering spousal
support, and required the court, except in limited cases,
to give the admonition known as the Gavron warning when
(more)
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ordering support or reserving jurisdiction.
AB 400 (Kuehl, 1997) would have exempted marriages of long
duration as defined by Family Code Section 4336 from the
marriages for which a "reasonable length of time," during
which a supported spouse is to attempt to reach
self-support, is defined as one-half the length of the
marriage. It would have deleted the statutory Gavron
warning and instead would have authorized the court to
advise the supported spouse to make reasonable efforts to
assist in his or her own support needs, unless the court
found the warning inadvisable in the case of a marriage of
long duration. This bill was vetoed by then-Governor
Wilson.
This bill is a new, improved, stronger version of AB 400.
CHANGES TO EXISTING LAW
Existing law (Family Code Section 4330) 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, taking into
consideration the various factors enumerated in Family Code
Section 4320.
Under existing law (Family Code Section 4320), the court
is required to consider several factors when ordering
spousal support, including the following:
a) the extent to which the earning capacity of each party
is sufficient to maintain the standard of living
established during the marriage, taking into account:
(1) the marketable skills of the supported party, the
job market for those skills, the time and expense that
would be required for the supported party to acquire
those marketable skills, and the possible need for
retraining or education to acquire other, more
marketable skills; and
(2) the extent to which the supported party's present or
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future earning capacity is impaired by periods of
unemployment incurred during the marriage to permit
the supported party to devote time to domestic duties;
b) the supporting party's ability to pay, based on his or
her earning capacity, earned and unearned income, assets,
and standard of living;
c) the needs of each party based on the standard of living
established during the marriage;
d) the duration of the marriage;
e) the age and health of the parties;
f) the balance of hardships to each party;
g) the goal that the supported party shall become self
supporting within a reasonable period of time, defined
generally as one-half the length of the marriage;
h) other factors the court determines to be just and
equitable.
This bill would establish that the goal to become
self-supporting would be based on the standard of living
established during the marriage [see (g) above].
This bill would exempt marriages of long duration (as
defined in Family Code Section 4336) from those marriages
for which a reasonable length of time to attain the goal of
self-support is one-half the length of the marriage [see
(g) above].
Existing law requires the court, in making an order for
spousal support, whether for a specific amount or simply to
reserve jurisdiction over the matter, to issue the
following admonition (commonly known as the Gavron
warning):
"It is the goal of this state that each party shall
make reasonable good faith efforts to become
self-supporting as provided for in Section 4320. The
failure to make reasonable good faith efforts, may be
one of the factors considered by the court as a basis
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for modifying or terminating support."
Existing law provides an exception to this requirement to
issue the Gavron warning, in cases where the court
determines that the supported party is unable to make such
reasonable good faith efforts.
This bill would eliminate the requirement for the court to
issue the Gavron warning in all cases.
COMMENT
1. Stated need for the bill
The author states the need for the bill as follows:
"Under current law, which has been in effect briefly, a
spouse receiving spousal support is expected to become
self-sufficient just as they enter their senior,
non-income producing years. This clearly makes no sense
and pushes more women into poverty where they will spend
their twilight years fighting to subsist. It is the
intent of AB 391 that we revert to what was the policy of
the state for many years and was then confirmed by the
California Supreme Court in the case of In re Marriage of
Morrison (1978). In Morrison , the presumption was that
in cases of marriages of long duration you may not set an
arbitrary time limit for support."
As the bill is intended to address the problem of
divorcing spouses who are entering their senior,
non-income producing years, and the issue of whether or
not these spouses ought to get relief from the
expectation that they would become self-sufficient after
divorce, should the Committee consider whether the bill
should be approved in its current broader scope or should
be limited in application to women or men who are about
to enter their senior, non-income producing years?
2. State goal of self-sufficiency vs. AB 391 goal of
self-sufficiency
Current law authorizes a court to order spousal support
in an amount and for a period of time that the court
deems just and reasonable based upon the standard of
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living established during marriage, based upon factors
specified in Family Code Section 4320.
Under Family Code Section 4320, one of the factors to be
considered by a court in determining whether to order
spousal support, what level of support and how long such
support should be ordered, is the goal that the supported
spouse become self-sufficient within a reasonable length
of time. The law is silent as to whether or not the
level of "self-sufficiency" that the supported spouse
must attempt to reach within a reasonable time is that
income which would allow him or her to live according to
the standard of living established during the marriage.
This bill would expressly establish that the goal of
self-sufficiency for the supported spouse is that based
on the standard of living established during the
marriage.
Case law, as well as statutory law, consistently
recognizes that the marital standard of living is one of
many factors to be considered by the court in making an
award of spousal support or in modifying or terminating
support. In re Marriage of Smith (1990) 225 CA 3d 469,
In re Marriage of Martin (App. 2 Dist. 1991) 229 Cal.
App. 3d 1196). This reference to standard of living
established during marriage has been used over and over
again by cases prior to and after In re Morrison (1978)
20 C. 3d 437, and all of them use the standard of living
concept in the context of the whole issue of support, not
in reference to the goal of self-sufficiency. (Cf. Lopez
v. Lopez (1974) 38 C.A. 3d 93, and In re Marriage of
Heistermann (App. 4 Dist. 1991) 234 Cal.App. 3d 1195.)
Retired Appellate Court Judge Donald B. King, a
nationally recognized authority on family law, and author
of the California Practice Guide For Family Law and
numerous appellate opinions on family law cases, opposes
this bill, specifically this provision of the bill, and
writes:
"The bill also provides the goal of becoming self
supporting is to be based on the marital standard of
living for the supported spouse. This is an error
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which raises a constitutional issue of equal
protection since, unlike Family Code Section 4320,
where the court must look at the marital standard of
living of both parties, this change would require the
court to look only at the supported spouse's ability
to meet the marital standard of living. Additionally,
it conflicts with section 4320 which makes clear that
marital standard of living is only one of many factors
which the court must consider in ordering spousal
support, whereas AB 391 requires the court to only
look at whether the supported spouse earns enough to
meet the marital standard of living."
Judge King notes in his letter that AB 391 has no
personal effect on his 42-year successful and happy
marriage.
The Family Law Section of the Los Angeles County Bar
Association, which is comprised of family lawyers
representing all income classes in Los Angeles, also
opposes this provision of the bill, and writes:
"That the court must consider the standard of living
in setting spousal support is already in the code in
three places: Family Code section 4320(a), (c), and
(d). Adding an additional reference to standard of
living would serve no purpose and cause confusion.
"Before Marriage of Smith (1990) 225 CA 3d 469,
litigants sometimes sought to elevate the standard of
living criterion to a level of importance above other
factors. The Smith court held that no one factor is
more important that [sic] the others. Adding yet
another reference to the marital standard of living
will serve only to reintroduce confusion that the
Smith court sought to eliminate."
WOULD THIS PROVISION OF THE BILL REQUIRE THE COURT TO
CONSIDER AND RECONCILE CONFLICTING STANDARDS? SHOULD IT
BE DELETED?
The Coalition for Family Equity, in support of the bill,
contends that "Family Court Commissioners are failing to
uphold the marital standard of living guideline for
setting support awards because they have interpreted that
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guideline as being in conflict with the goal that all
ex-spouses be self supporting." However, the Coalition
offered no evidence or cases indicating that since the
enactment in 1996 of SB 509 (which added the self-support
goal into the Family Code), that judges and court
commissioners have indeed made such interpretations.
3. Long-term marriages exempted from
half-length-of-marriage definition of "reasonable length
of time" to become self-sufficient
Under existing law, a "reasonable length of time" for a
supported spouse to reach the goal of self-sufficiency is
defined as generally one-half the length of the marriage.
This is not a fixed time period, but is given to the
courts as a guideline for determining the appropriate
length of time for support. The same provision [Family
Code Section 4320 (k)] contains language that clearly
states the court's discretion to shorten or lengthen the
time support would be ordered, depending on all of the
other factors enumerated in Section 4320.
This bill would restrict the
half-the-length-of-the-marriage guideline to marriages of
less than 10 years.
Proponents contend that exempting long-term marriages
from the guideline will ensure that women who devoted
many years of their lives (10 years or more) to raising
their families and who are now facing not only the trauma
of divorce but also the prospect of rejoining the labor
force to become self-supporting would not be threatened
with a total cut-off of support when the
half-the-length-of-marriage period expires. Other
proponents argue that the guideline imposes an arbitrary
cut-off date for ending spousal support, and that the
statute results in the "termination of support after half
the length of the marriage in almost all cases, including
long term marriages."
Opponents, however, state that restricting the guideline
to marriages of less than 10 years would unbalance the
current state of the law which opponents believe is fair
to the supported spouse. They completely support the
Supreme Court's decision in In re Morrison , supra, which
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correctly reversed the trend in the 1970's where courts
ordered support insufficient in amount and duration.
Opponents believe that Morrison has resulted in "greater
equity and fairer treatment of displaced homemakers," and
that, in combination with the "carefully and guardedly
worded" half-the-length-of-the-marriage guideline
provided by Family Code Section 4320(k), Morrison has
given the court discretion to do equity to all displaced
homemakers.
"Giving the court the discretion to take into account in
a general way a policy that spouses be self-supporting
after a period equal to half the length of the marriage
allowed the courts to do justice, to balance legitimate
interests of both spouses." Family Law Section of the
Los Angeles County Bar Association.
The argument over the use of the guideline because it
results in an arbitrary cut-off of support when half the
length of marriage expires is based on the equally
arbitrary definition of a long-term marriage as one of 10
years or more in duration. It would seem that if the
goal of the bill is to treat differently women who are
past 50, for example (this age was mentioned by several
supporters as the age at which women would begin to have
problems entering or reentering the job market after
leaving a long-term marriage), the exception from any
arbitrary cut off date should be changed.
This bill would treat 10-year marriages (where the
supported spouse could be as young as 30, if married at
20) the same way it would treat a 30-year marriage (where
the supported spouse could be 50, if married at 20).
With the infinite variations of the combination of
factors of length of marriage and age at
marriage/divorce, it would be impossible not to be
arbitrary. The most apparent solution is to give the
court unfettered discretion to weigh all of the factors
described in Section 4320 in view of all the
circumstances of each case, which it now has under
current law.
Alternatively, if the results of current law are harsh,
and the goal is to lessen the trauma to those
newly-divorced entering their senior non-income producing
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years and who have spent a substantial amount of their
lives on their domestic duties within the marriage,
perhaps a specific exception should be carved out for
them. In fact, some opponents have pointed out that
their objections would be tempered by a specific
exemption for spouses who are 50 plus years and who are
coming out of long-term marriages of substantially more
than 10 years from the half-the-length-of-the-marriage
guideline. This, they contend, will reduce the
possibility that a young, healthy, able, skilled spouse
who was married for 10 years and not one day more before
separation would be entitled to collect spousal support
for the rest of his lifetime from a highly skilled,
high-income producing young woman.
The California Commission on the Status of Women, writing
in support of
AB 391, focuses on the plight of the supported spouse,
and states that the changes enacted by SB 509 in 1996 are
"particularly harmful to older homemakers from long-term
marriages?Some of these women are among California's most
economically impoverished and consequently would
experience undue hardships by these [SB 509] limitations.
Imposing an arbitrary cutoff date on support payments is
unnecessarily punitive and, in many cases, unrealistic."
SHOULD THE BILL BE RE-FOCUSED TO CARVE OUT AN EXEMPTION
FROM EXISTING LAW FOR LONG-TERM MARRIAGES OF MORE THAN 10
YEARS' DURATION, WHERE THE SUPPORTED SPOUSE IS AT LEAST
50 YEARS OF AGE?
4. Statutorily-required Gavron warning would be
eliminated
SB 509 (Calderon, Ch. 1163 Stats. 1996) enacted what is
commonly known as the Gavron warning. It is an
admonition that the court is required to make, except in
limited cases where the court determines the supported
party is unable to make the effort, warning both the
divorcing spouses that the goal of the state (consistent
with Family Code Section 4320) is that each party become
self supporting, and that the failure to make reasonable
good faith efforts may be a factor considered by the
court as a basis for modifying or terminating support.
This bill would eliminate this required warning.
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Page 10
Proponents state that the Gavron warning is a
"particularly onerous admonition" which creates a new
standard for modification of support (referring to an
abrogation of the "change of circumstances" standard),
and that the admonition "now permits termination of
support based solely on the supported spouse failing to
become self-supporting." However, perhaps because the
statute has been in effect just over 30 months,
proponents have presented no case where a court has
terminated support based solely on a spouse failing to
become self-supporting, or that a court has abused its
discretion in this manner.
Still, California NOW argues, in strong support of the
bill, that the [Gavron] admonition "merely serves to
threaten and punish women who are already doing
everything they can to survive the economic and emotional
devastation of divorce. Studies have shown that divorced
women?work as much as they can. However, women's
earnings average approximately 75% of men's earnings, and
women 45 to 64 years of age earn only 37% as much as
their male counterparts. Women are at a distinct
disadvantage when it comes to supporting themselves and
their families."
Opponents, on the other hand, point to In re Marriage of
Schaffer (App. 4 Dist. 1999) 69 Cal.App. 4th 801, where
the judge ordered support terminated after 15 years and
six modification hearings, because the supported spouse
(who was 33 at time of divorce), who had a master's
degree in marriage, family, and child counseling, was
unwilling "to wean herself off spousal support by finding
work in an area where she had a decent chance of finding
work." In that case, the court noted that "California
law builds in the necessary flexibility to accommodate
changing circumstances over time in the context of
spousal support by allowing modification proceedings,"
and that "a supported spouse cannot make unwise decisions
which have the effect of preventing him or her from
becoming self-supporting and expect the supporting spouse
to pick up the tab." Even in this case, opponents say,
the court did not abuse its discretion in terminating
support, because there were many other factors that were
considered in addition to the failure to become
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self-supporting.
Retired Appellate Court Judge Donald B. King also opposes
the elimination of the Gavron warning:
"The provisions of the bill which deletes the language
of Family Code section 4330(b), the "Gavron Warning,"
accomplishes nothing since the Gavron case is still
good law and binding on the judges. This warning is a
protection to supported spouses who may be unaware of
California's long standing policy that, absent good
cause, supported spouses have the duty to use
reasonable efforts to become self supporting. Present
law does not require the Gavron warning where the
judge believes the supported spouse is unable to
become self supporting and this would cover most, if
not all of the long term marriages with which the
author has concern."
SHOULD THE REPEAL OF THE REQUIRED WARNING BE LIMITED TO
CASES ENDING MARRIAGES WHERE THE SUPPORTED SPOUSE IS OVER
50 YEARS OF AGE?
Family Code Section 4336 was enacted in 1992, four years
before the Gavron warning was statutorily required by SB
509. This section established that except on written
agreement to the contrary or a court order terminating
support, the court retains jurisdiction over a
dissolution of marriage or legal separation indefinitely,
where the marriage is of long duration. The statute
creates a presumption affecting the burden of producing
evidence that a marriage of 10 years or more is a
marriage of long duration.
Since this bill would repeal the required Gavron warning
and excuse long-term marriages from the goal of
self-sufficiency by half-the-length-of-marriage
guideline, opponents have suggested redefining "long term
marriage" to a marriage of much longer duration than 10
years.
SHOULD THE REPEAL OF THE REQUIRED WARNING BE LIMITED TO
CASES ENDING MARRIAGES OF 20 OR 30 YEARS' DURATION
INSTEAD?
AB 391 (Jackson)
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The State Bar Family Law Section, as well as the Family
Law Section of the Los Angeles County Bar Association,
also oppose the deletion of the Gavron warning from the
Family Code. The latter writes:
"The requirement of the Gavron warning in Family Code
Section 4330(b) was enacted for good reasons and
should not be repealed. After trial, courts almost
always give the warning. But most cases are settled,
and promoting settlement is a policy of the law.
Before the enactment of Section 4330(b), the inclusion
of a Gavron warning in a negotiated settlement was
often the subject of intense debate, with the
potential of becoming a deal breaker, and the cause of
more expense and discord for the parties. Even where
the warning has been given, there will be
circumstances in which the expectation that the
supported spouse become self-supporting was not
justified. In those cases, the code already instructs
the court not to use the Gavron warning to cut off
support. Deleting the Gavron warning nourishes a
culture of victimhood, not a culture of
self-improvement, and not a culture of meeting the
legitimate needs of a supported spouse who acts
responsibly."
5. Opponents claim compound effect would make law
inequitable
In combination, some opponents contend, the three changes
this bill would make to existing law would wreak havoc
with judgments and marital settlement agreements where
spousal support could potentially be awarded or remain
unmodified for the lifetime of the supported spouse, at a
standard established during marriage when the supporting
spouse was able to earn a high income.
As an example, one opponent points to the inequity the
bill would yield if a couple where the supporting spouse
earned $500,000 a year during the last few years of a
10-year marriage, and the highly educated supported
spouse was only 31 at the time of divorce. Because the
goal of self-support would be tied to the standard of
living established during marriage, the long-term
marriage would be exempt from the
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half-the-length-of-marriage guideline, and the court not
now being required to admonish the supported spouse that
failure to exert good faith efforts to become self
supporting may be considered by the court in terminating
or modifying the support order, the supported spouse
could continue to receive a hefty spousal support payment
without seeking employment for as long as the supporting
spouse can earn $500,000 a year, and potentially far in
excess of the period of the dissolved marriage. These
opponents contend that no public policy interests are
served by requiring a supporting party to pay lifetime
support to the supported party simply because the
supporting party has the financial ability to do so.
6. General comments from supporters
This bill is sponsored by the Coalition For Family
Equity, a group comprised of more than 20 women's
organizations throughout the state, including California
NOW, the California Commission on the Status of Women,
American Association of University Women, Federation of
Business and Professional Women, The Los Angeles League
of Women Voters, California Women Lawyers, National
Council of Jewish Women /LosAngeles, and others. Their
statements have been incorporated in the comments above,
but in addition, the following are noteworthy:
"Present law which uses the
self-support-within-half-the-length-of-the-marriage
guideline and the requirement that judges admonish
spouses that they are required to make a 'good faith'
effort to become self-supporting regardless of the
standard of living achieved during the marriage, pose a
severe economic danger to older homemakers and to women
with dependent children in their care.
"AB 391 brings the new self-support goal into conformity
with portions of existing law which recognize the value
to the community of long term marriages and the need for
equitable redistribution of assets and income following
divorce so that homemakers, older women and mothers with
dependent children do not carry more than a fair share of
the economic burden." American Association of University
Women.
"AB 391 is especially important as it applies to the wife
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in the long term marriage of a relatively affluent
couple. A certain standard of living has been set.
Should the divorced woman, who may not want the divorce,
be forced to live at a much lower standard of living
because her spouse chooses to divorce her? Should she be
threatened with being cut off from spousal support after
this long term marriage? In her way she has usually made
significant contributions to the marital standard of
living of the couple. This must be recognized in the
divorce settlement.
"The inclusion of the judicial admonition to the woman to
find employment regardless of her age or other
circumstances is unreasonable. A woman past fifty begins
to have trouble entering the job market. Her old job
skills, if she had any, are probably no longer applicable
in the present job market. There is little question of
the practice of age discrimination in hiring. In
addition, some older women may have physical or mental
problems which hamper employment. This bill would not
discourage women from working. Most women are better off
when they are able to be self-supporting, but this is
often not easily accomplished." Older Women's League of
California.
7. General comments from opponents
The Coalition of Parent Support, in opposing this bill,
writes:
"Spousal support is intended to rehabilitate former
spouses who have dedicated a portion of their lives to
non-income producing activities connected with the
couple's mutual desire to raise children. Thus it is
appropriately conditioned upon the recipient's good-faith
efforts to achieve self-sufficiency, and appropriately
time-limited. It is not appropriate to erase these
conditions unless we are willing to examine the entire
nature of marital fault, and the status of women in
modern society.
[AB 391] appears to emanate from the assumption that
women are less capable of making informed lifestyle
choices than men. We reject this thinking, and would
urge you consider the damage that its message does to
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women struggling to break through such glass ceilings as
may still exist in our society."
Over 75 letters from individuals with a variety of
occupations were received by the Committee. One such
letter states:
"In my judgment, spousal support represents a "crutch";
often an essential crutch, but a crutch nevertheless. It
is always preferable for an adult to stand on his or her
own two feet, whether physically or financially.
Feelings of independence and self worth require that. At
the same time, crutches are necessary for those who are
unable to do so, and again that applies both physically
and financially. Furthermore, just as it is wrong to
withhold a crutch from someone who really needs it, it is
equally wrong to permit someone to rely on a crutch
longer than he or she needs to. The goal in both areas
is to ensure that crutches are available when needed, but
also that they are not relied upon any longer than
necessary.
"Just as in the case of a physical crutch, the decision
to provide a financial crutch requires a balancing of
these opposing considerations. I am sure you [referring
to the author] have struggled with this balancing act
when [the author] drafted AB 391. Unfortunately, I feel
that [the author has] drawn the line too far in one
direction?I strongly oppose this bill, not because
spousal support is not needed in many situations, but
rather because an unbalanced result will only damage both
the recipient and the payor." William Comanor, former
Chair of the Department of Economics, UC Santa Barbara.
7. Bill should be prospective only
Because of the sweeping changes this bill would make in
current law, it should be made prospective in effect
only, applying to marriages dissolved or legal
separations after January 1, 2000. If not made
prospective in effect only, the various provisions of the
bill could result in extended litigation, continuing
disputes and reinterpretation of settlement agreements
that are thought to have adjudicated spousal support
issues. In fact, one opponent called the bill a "full
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employment bill for family lawyers." Making the bill
prospective will reduce opportunity for unnecessary
litigation.
SHOULD THIS BILL APPLY ONLY TO MARRIAGES DISSOLVED OR TO
LEGAL SEPARATIONS AFTER JANUARY 1, 2000?
Support: Women Lawyers' Alliance; Queen's Bench; California
Commission on the Status of Women; American
Association of University Women; California NOW;
Older Women's League of California; Women For:; CJA;
National Council of Jewish Women; Business and
Professional Women, California Federation
Opposition: Family Law Section, Los Angeles County Bar
Association; Coalition of Parent Support; Alliance
for Non-Custodial Parents' Rights; former
Appellate Court Judge Donald B. King;
approximately 75 individuals
HISTORY
Source: Coalition for Family Equity
Related Pending Legislation: None Known
Prior Legislation: AB 400 (Kuehl, 1997), vetoed by
then-Governor Wilson
SB 509 (Calderon, Ch. 1163 Stats 1996)
Prior Vote: Assembly Judiciary (Ayes 10. Noes 4.)
Assembly Floor (Ayes 43. Noes 30.)
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