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) AB 391 (Jackson) Page 2 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 AB 391 (Jackson) Page 3 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 AB 391 (Jackson) Page 4 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 AB 391 (Jackson) Page 5 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 AB 391 (Jackson) Page 6 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 AB 391 (Jackson) Page 7 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 AB 391 (Jackson) Page 8 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 AB 391 (Jackson) Page 9 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. AB 391 (Jackson) 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 AB 391 (Jackson) Page 11 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) Page 12 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 AB 391 (Jackson) Page 13 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 AB 391 (Jackson) Page 14 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 AB 391 (Jackson) Page 15 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 AB 391 (Jackson) Page 16 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.) **************