Existing law requires a court 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. In making spousal support awards, the court is required to consider, among other factors, documented evidence of any history of domestic violence between the parties or against the child of either party.

This bill would specify that a plea of nolo contendere is included within the documented evidence of domestic violence to be considered by the court.

Existing law requires a court 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. In making spousal support awards, the court is required to consider, among other factors, documented evidence of any history of domestic violence between the parties or against the child of either party.

This bill would specify that a plea of nolo contendere is included within the documented evidence of domestic violence to be considered by the court.

Existing law requires that 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 5 years prior to the filing of the dissolution proceeding, or at any time thereafter, there is a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable should not be made.

This bill would provide that a plea of nolo contendere would constitute a criminal conviction for the above purposes.

SENATE THIRD READING

STR Bill Id:SB 28

Author:(Wieckowski)

As Amended Ver:May 13, 2015

Majority vote

SENATE VOTE: 36-0

SUMMARY: Provides that a plea of nolo contendere to a domestic violence offense constitutes documented evidence of domestic violence that a court must consider when deciding whether to order spousal support. Specifically, this bill provides that a plea of nolo contendere is included in the documented evidence of any history of domestic violence between the parties or perpetrated by either party against either party's child, as provided, that a court must consider when deciding whether to award spousal support.

EXISTING LAW:

1. Allows a court to order one party to a dissolution or legal separation to pay spousal support to the other party for a period of time that the court determines is just and reasonable, as provided.

2. Requires the court, when determining whether to award spousal support, to consider specified factors and circumstances, including a documented history of domestic violence. In addition to the specified factors, authorizes the court to consider any other factors that the court determines are just and equitable in determining a spousal support award.

3. 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 dissolution of the marriage, or any time thereafter.

4. In addition to any other remedy, prohibits a spouse who is convicted of attempting to murder the other spouse, or soliciting the murder of the other spouse, from receiving any temporary or permanent award of spousal support, medical, life or other insurance benefits or payments from the injured spouse.

5. Prohibits an award of spousal support to a spouse who has been convicted of a violent sexual felony against the other spouse, if the dissolution proceeding is filed within five years of the conviction or time served, as specified.

6. Provides that the legal effect of a plea of nolo contendere to a misdemeanor is the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. Provides that the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.

FISCAL EFFECT: None

COMMENTS: When parties in a divorce proceeding request spousal support, the court may order either spouse to pay for the support of the other party for a period of time that the court considers just and reasonable based on the standard of living established during the marriage. In determining the amount of support, the court is required to take many factors into consideration, including evidence of any history of domestic violence between the two parties. In addition, there is a rebuttable presumption that spousal support is not to be granted to a spouse who has been convicted of domestic violence during the five years preceding the filing of a petition for dissolution. This bill clarifies that a plea of nolo contendere (no contest) to a domestic violence charge is indeed documented evidence of domestic violence that the court must consider when deciding whether to award either party spousal support.

Spousal Support and Domestic Violence. 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. 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. 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, the ability of each party to engage in employment considering the interests of dependent children, and any other factors that the court determines are just and equitable. Of particular relevance here, the court is also required to consider documented evidence of any history of domestic violence between the parties. As a result of the complexity of the factors that the court must consider and the individual circumstances of the parties and families involved, courts are given broad discretion in determining spousal support awards.

For the most part, spousal support is discretionary. However, existing law specifically restricts a court's ability to award spousal support in a few situations. First, when a spouse is convicted of attempted murder of the other spouse, no award of spousal support is available to the convicted spouse. Second, when a spouse is convicted of a violent sexual felony against the other spouse, as specified, the convicted spouse is prohibited from receiving spousal support. Third, when a spouse is convicted of domestic violence against the other spouse, there is a presumption against the award of spousal support to the convicted spouse, although the presumption may be overcome. Finally, as discussed above, when ordering a spousal support award, a court must consider documented history of domestic violence, including but not limited to emotional distress or violence, committed by one spouse against the other or by one spouse against the children of the other spouse.

Effect of a No Contest Plea. A plea of nolo contendere or no contest is treated like a guilty plea in the criminal proceedings. However, a no contest plea generally may not be used as an admission of guilt in a subsequent civil suit based on the criminal conviction. Even in civil actions where a no contest plea is admissible, the party who enters the plea may be 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.

Recent Appellate Case Holds That No Contest Plea in Domestic Violence Case Creates a Presumption Against Spousal Support. A recent appellate court found that a no contest plea to a domestic violence offense by one spouse against the other spouse within the previous five years, like a guilty plea or a conviction, creates a rebuttable presumption that spousal support should not be awarded to the abusive spouse. In that case, In re Marriage of Priem (2013) 214 Cal. App. 4th 505, one spouse had a history of domestic violence against the other spouse, including multiple protective orders and several criminal convictions including a criminal conviction within the previous five years to which the spouse had pleaded no contest. The appellate court agreed with the trial court that the conviction based on the no contest plea created a presumption that spousal support would not be awarded to the abusive spouse under existing law. The court noted that the no contest plea only created a presumption against spousal support which could be rebutted by the spouse seeking support. Thus, the convicted spouse could explain to the court why he or she had pled no contest to the domestic violence charge, contest the truth of the matters admitted in the pleas, and, depending on that explanation, overcome the presumption against spousal support.

This Bill Simply Requires the Courts Consider a No Contest Plea When Deciding on Spousal Support. This bill does not go quite as far as In re Marriage of Priem, simply stating that a no contest plea to a domestic violence offense is documented evidence of domestic violence that a court must consider when deciding whether to order spousal support. Thus, this bill simply clarifies that a court must consider the no contest plea, but does not create a presumption against the award of spousal support based upon that plea. This ensures that courts continue to have broad discretion in deciding when to award spousal support, but also ensures that courts consider relevant issues when making that decision.

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0000950

Date of Hearing: June 16, 2015

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 28

Author:(Wieckowski) – As Amended Ver:May 13, 2015

SENATE VOTE: 36-0

SUBJECT: Spousal support factors: domestic violence

KEY ISSUE: SHOULD A PLEA OF NO CONTEST TO A DOMESTIC VIOLENCE CHARGE BE INCLUDED IN THE HISTORY OF DOMESTIC VIOLENCE THAT A COURT MUST CONSIDER WHEN DECIDING WHETHER TO AWARD SPOUSAL SUPPORT?

SYNOPSIS

When parties in a divorce proceeding request spousal support, the court may order either spouse to pay for the support of the other party for a period of time that the court considers just and reasonable based on the standard of living established during the marriage. In determining the amount of support that should be paid, the court is required to take into account many factors, including evidence of any history of domestic violence between the two parties. In addition, there is a rebuttable presumption that spousal support should not to be granted to a spouse who has been convicted of domestic violence during the five years preceding the date when the petition for dissolution was filed. This non-controversial bill clarifies that a plea of no contest to a domestic violence offense involving the parties to a dissolution or their children is documented evidence of domestic violence that a court must consider when deciding whether to award spousal support. This bill is supported by domestic violence groups and the Los Angeles District Attorney's Office, and has no opposition.

SUMMARY: Provides that a plea of nolo contendere to a domestic violence offense constitutes documented evidence of domestic violence that a court must consider when deciding whether to order spousal support. Specifically, this bill provides that a plea of nolo contendere is included in the documented evidence of any history of domestic violence between the parties or perpetrated by either party against either party’s child, as provided, that a court must consider when deciding whether to award spousal support.

EXISTING LAW:

1. Allows a court to order one party to a dissolution or legal separation to pay spousal support to the other party for a period of time that the court determines is just and reasonable, as provided. (Family Code Section 4330. Unless stated otherwise, all further statutory references are to that code.)

2. Requires the court, when determining whether to award spousal support, to consider specified factors and circumstances, including a documented history of domestic violence. In addition to the specified factors, authorizes the court to consider any other factors that the court determines are just and equitable in determining a spousal support award. (Section 4320.)

3. 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 dissolution of the marriage, or any time thereafter. (Section 4325.)

4. In addition to any other remedy, prohibits a spouse who is convicted of attempting to murder the other spouse, or soliciting the murder of the other spouse, from receiving any temporary or permanent award of spousal support, medical, life or other insurance benefits or payments from the injured spouse. (Section 4324.)

5. Prohibits an award of spousal support to a spouse who has been convicted of a violent sexual felony against the other spouse, if the dissolution proceeding is filed within five years of the conviction or time served, as specified. (Section 4324.5.)

6. Provides that the legal effect of a plea of nolo contendere to a misdemeanor is the same as a plea of guilty and that, upon a plea of nolo contendere, the court shall find the defendant guilty. Provides that the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based. (Penal Code Section 1016.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: When parties in a divorce proceeding request spousal support, the court may order either spouse to pay for the support of the other party for a period of time that the court considers just and reasonable based on the standard of living established during the marriage. (Section 4330.) In determining the amount of support, the court is required to take many factors into consideration, including evidence of any history of domestic violence between the two parties. (Section 4320.) In addition, there is a rebuttable presumption that spousal support is not to be granted to a spouse who has been convicted of domestic violence during the five years preceding the filing of a petition for dissolution. This bill clarifies that a plea of nolo contendere (no contest) to a domestic violence charge is indeed documented evidence of domestic violence that the court must consider when deciding whether to award either party spousal support.

In support of the bill, the author states:

Unfortunately, California statute is silent on whether a nolo contendere, or “no contest,” pleading constitutes a criminal conviction for purposes of awarding spousal support. In an effort to clarify how no contest pleas should be treated in a subsequent dissolution proceeding, SB 28 ensures that a person who abuses his spouse and subsequently pleads “no contest” does not unjustly receive spousal support by adding a pleading of nolo contendere into the factors that a judge must consider before making an award for spousal support.    

Spousal Support and Domestic Violence. 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. 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, the ability of each party to engage in employment considering the interests of dependent children, and any other factors that the court determines are just and equitable. Of particular relevance here, the court is also required to consider documented evidence of any history of domestic violence between the parties. As a result of the complexity of the factors that the court must consider and the individual circumstances of the parties and families involved, courts are given broad discretion in determining spousal support awards.

For the most part, spousal support is discretionary. However, existing law specifically restricts a court’s ability to award spousal support in a few situations. First, when a spouse is convicted of attempted murder of the other spouse, no award of spousal support is available to the convicted spouse. Second, when a spouse is convicted of a violent sexual felony against the other spouse, as specified, the convicted spouse is prohibited from receiving spousal support. Third, when a spouse is convicted of domestic violence against the other spouse, there is a presumption against the award of spousal support to the convicted spouse, although the presumption may be overcome. Finally, as discussed above, when ordering a spousal support award, a court must consider documented history of domestic violence, including but not limited to emotional distress or violence, committed by one spouse against the other or by one spouse against the children of the other spouse.

Effect of a No Contest Plea. A plea of nolo contendere or no contest is treated like a guilty plea in the criminal proceedings. (See People v. Yartz (2005) 37 Cal.4^th 529.) However, a no contest plea generally may not be used as an admission of guilt in a subsequent civil suit based on the criminal conviction. (Penal Code Section 1016.) Even in civil actions where a no contest plea is admissible, the party who enters the plea may be 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. (4 Witkin, Cal. Crim. Law (2014) Pretrial Section 292.)

Recent Appellate Case Holds That No Contest Plea in Domestic Violence Case Creates a Presumption Against Spousal Support. A recent appellate court found that a no contest plea to a domestic violence offense by one spouse against the other spouse within the previous five years, like a guilty plea or a conviction, creates a rebuttable presumption that spousal support should not be awarded to the abusive spouse. In that case, In re Marriage of Priem (2013) 214 Cal. App. 4^th 505, one spouse had a history of domestic violence against the other spouse, including multiple protective orders and several criminal convictions including a criminal conviction within the previous five years to which the spouse had pleaded no contest. The appellate court agreed with the trial court that the conviction based on the no contest plea created a presumption that spousal support would not be awarded to the abusive spouse under Section 4325. The court noted that the no contest plea only created a presumption against spousal support which could be rebutted by the spouse seeking support. Thus, the convicted spouse could explain to the court why he or she had pled no contest to the domestic violence charge, contest the truth of the matters admitted in the pleas, and, depending on that explanation, overcome the presumption against spousal support.

This Bill Simply Requires the Courts Consider a No Contest Plea When Deciding on Spousal Support. This bill does not go quite as far as In re Marriage of Priem, simply stating that a no contest plea to a domestic violence offense is documented evidence of domestic violence that a court must consider when deciding whether to order spousal support. Thus, this bill simply clarifies that a court must consider the no contest plea, but does not create a presumption against the award of spousal support based upon that plea. This ensures that courts continue to have broad discretion in deciding when to award spousal support, but also ensures that courts consider relevant issues when making that decision.

ARGUMENTS IN SUPPORT: In support of the bill, the Los Angeles District Attorney's Office writes: "We believe that a person who has plead[ed] 'no contest' to domestic violence should have to explain to a judge why he or she deserves spousal support in later divorce proceedings, just as a person who pleaded or was found guilty, of domestic violence."

Adds the California Partnership to End Domestic Violence: "This change will protect survivors from having to pay spousal support to their abusers."

REGISTERED SUPPORT / OPPOSITION:

Support

Asian Americans for Community Involvement

California Partnership to End Domestic Violence

Los Angeles District Attorney's Office

Safe Alternatives to Violent Environments (SAVE)

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334

 CONSENT 

Bill No: SB 28

Author: Wieckowski (D)

Amended: 5/13/15

Vote: 21

SENATE JUDICIARY COMMITTEE: 7-0, 5/5/15

AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski

SUBJECT: Spousal support factors: domestic violence conviction

SOURCE: Author

DIGEST: This bill clarifies that pleas of nolo contendere to allegations of domestic violence are included in a documented history of domestic violence that a court must consider when making an award of spousal support.

ANALYSIS: 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.)

This bill provides that a plea of nolo contendere to domestic violence shall be considered by the court as part of a documented history of domestic violence.

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 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.

Accordingly, this bill clarifies that a court, when making an award of spousal support, should consider any pleas of no contest to domestic violence, in its consideration of a documented history of domestic violence between spouses.

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.

AB 2674 (Block, Chapter 65, Statutes of 2010) prohibited 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) provided 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.

Comments

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.

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.

FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No

SUPPORT: (Verified 5/13/15)

Asian Americans for Community Involvement

California Partnership to End Domestic Violence

Safe Alternatives to Violent Environments

OPPOSITION: (Verified 5/13/15)

None received

Prepared by: Nichole Rapier / JUD. / (916) 651-4113

5/13/15 17:26:26

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015 - 2016 Regular Session

Bill No: SB 28 (Author:Wieckowski)

Amended: Version: December 1, 2014

Hearing Date: May 5, 2015

Fiscal: No

Urgency: No

Consultant: 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 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.)

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.

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 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 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.

4. 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 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.

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.

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