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SB-1129 Spousal support award: conviction for act of domestic violence.(2017-2018)

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Date Published: 05/15/2018 09:00 PM
SB1129:v98#DOCUMENT

Amended  IN  Senate  May 15, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 1129


Introduced by Senator Monning

February 13, 2018


An act to amend Section Sections 4324.5 and 4325 of the Family Code, relating to support orders.


LEGISLATIVE COUNSEL'S DIGEST


SB 1129, as amended, Monning. Spousal support award: conviction for act of domestic violence.
Existing law requires that in any proceeding for dissolution of marriage where one spouse has been convicted of an act of domestic violence against the other spouse within a specific time period, there is a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse should not be made. In a similar spousal support proceeding where one spouse has been convicted for of a violent sexual felony perpetrated against the other spouse within a specific time period, existing law prohibits an award of spousal support to the convicted spouse from the injured spouse, requires the court to order attorney’s fees to be paid from community assets, authorizes the legal date of legal separation to be the date of the incident giving rise to the conviction or earlier, and entitles the injured spouse to 100 percent of the community interest in the injured spouse’s retirement and pension.

This bill would delete the provisions relating to the rebuttable presumption in a proceeding for dissolution of marriage where one spouse has been convicted of an act of domestic violence against the other spouse, and instead award spousal support under these circumstances in a manner similar to when one spouse has been convicted of a violent sexual felony against the other spouse.

This bill would modify the rebuttable presumption against making an award of temporary or permanent spousal support that is applicable to all criminal convictions for an act of domestic violence by distinguishing between a criminal conviction for a domestic violence felony and a domestic violence misdemeanor, and would define these two types of convictions. Under the bill, a criminal conviction for a domestic violence felony would prohibit awards relating to spousal support, attorney’s fees, setting the date of separation, and retirement and pension benefits in a manner similar to a criminal conviction for a violent sexual felony. Under the bill, a criminal conviction for a domestic violence misdemeanor or a misdemeanor that results in a term of probation that is based on domestic violence, as specified, would require a rebuttable presumption against making the same awards that are prohibited in cases of a criminal conviction for a violent sexual felony or domestic violence felony.
This bill would establish different time periods for the effectiveness of the prohibition in cases of a criminal conviction for a violent sexual felony or domestic violence felony and the effectiveness of the rebuttable presumption in cases of a domestic violence misdemeanor or probationary term, as specified. The bill would define terms for its purposes, and would make technical changes to these provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 4324.5 of the Family Code is amended to read:

4324.5.
 (a) In any proceeding for dissolution of marriage where there is a criminal conviction for a violent sexual felony or a domestic violence felony perpetrated by one spouse against the other spouse and the petition for dissolution is filed before five years following the conviction and any time served in custody, on probation, or on parole, the following shall apply:
(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) Where If economic circumstances warrant, the court shall order the attorney’s fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney’s fees of the convicted spouse out of the injured spouse’s separate property.
(3) At the request of the injured spouse, the date of legal separation separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(4) The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.

(b)As used in this section, “violent sexual felony” means those offenses described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code.

(c)As used in this section, “injured spouse” means the spouse who has been the subject of the violent sexual felony for which the other spouse was convicted.

(b) As used in this section, the following definitions apply:
(1) “Domestic violence felony” means a felony offense for an act of abuse, as described in Section 6203, perpetrated by one spouse against the other spouse.
(2) “Injured spouse” means the spouse who has been the subject of the violent sexual felony or domestic violence felony for which the other spouse was convicted.
(3) “Violent sexual felony” means those offenses described in paragraphs (3), (4), (5), (11), and (18) of subdivision (c) of Section 667.5 of the Penal Code.

SECTION 1.Section 4325 of the Family Code is amended to read:
4325.

In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, the following shall apply:

(a)An award of spousal support to the convicted spouse from the injured spouse is prohibited.

(b)Where economic circumstances warrant, the court shall order the attorney’s fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney’s fees of the convicted spouse out of the injured spouse’s separate property.

(c)At the request of the injured spouse, the date of legal separation shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.

(d)The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.

SEC. 2.

 Section 4325 of the Family Code is amended to read:

4325.
 (a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made. that the following shall apply:
(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney’s fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney’s fees of the convicted spouse out of the injured spouse’s separate property.
(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.
(4) The injured spouse shall be entitled to 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
(b) The court may consider documented evidence of a convicted spouse’s history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.
(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.
(d) As used in this section, the following definitions apply:
(1) “Domestic violence misdemeanor” means a misdemeanor offense for an act of abuse, as described in Section 6203, perpetrated by one spouse against the other spouse.
(2) “Injured spouse” means the spouse who has been the subject of the violent sexual felony or domestic violence felony for which the other spouse was convicted.