California divorce laws are constantly changing. Lawmakers occasionally introduce new laws and remove others, affecting the divorce process and property division. An example of an introduced law is Senate Bill (SB) 1129. This law has significantly affected spousal support and other aspects of divorce laws. Read this blog to find out how. Also, consult a skilled divorce lawyer to determine how the law applies to your case.
How SB 1129 Affects California Divorce Laws
Governor Jerry Brown signed SB 1129 into law in Sept. 2018. This bill applies to California divorce proceedings. It impacts California divorce statutes in two primary ways. These are:
- The bill denies spousal support or alimony to spouses found guilty of domestic violence felony or violent sexual felony against their spouse.
- Presumes the availability of alimony to spouses found guilty of a domestic violence misdemeanor against their spouse is criminalized.
About the latter, note that the offending spouse can rebut this presumption. That means a judge can sometimes grant alimony to the offending spouse. However, they must prove they are entitled to that support. The standard of proof in this case is a preponderance of the evidence.
How California Law Defines Domestic Violence
Domestic violence is abuse perpetrated against a romantic or intimate partner. Intimate partners include:
- A former or current spouse
- A former or current fiance(e)
- A former or current registered partner
- A former or current cohabitant (live-in romantic partner)
- A person you are seriously dating or have seriously dated before
- A person you have, or have had a child with
A domestic violence felony is a felony crime for an abuse act a spouse commits against the other. Conversely, a domestic violence misdemeanor is a misdemeanor crime for an abuse act a spouse commits against the other. Per Family Code Section 6203, acts of abuse are any of the following:
- Sexual assault
- Recklessly or intentionally causing or trying to cause physical injury against a romantic partner.
- Placing someone in reasonable fear of imminent severe physical injury to them or another
- Engaging in any conduct that could be or has been enjoined per Family Code Section 6320
Note that acts of abuse are not limited only to assault or infliction of bodily injury. Common domestic violence crimes in California include abuse, threats, neglect, and battery.
Most domestic violence crimes are wobblers. A wobbler crime is one the prosecutor can charge as a felony or misdemeanor. The prosecutor makes their decision on whether to impose felony or misdemeanor charges based on the following:
- The facts surrounding the crime
- The accused person's criminal history (if any)
- The severity of the supposed victim's injuries (if any)
Most counties order a minimum custody time of thirty days for a domestic violence conviction. That is the case even if it is a misdemeanor charge and the accused person's first violation.
Penal Code 667 describes violent sexual felonies. Violent felonies that apply to SB 1129 include the following:
- Rape under PC Section 261
- Sodomy under PC Section 286(c) or (d)
- Oral copulation per PC Section 287(c) or (d)
- Sexual penetration per PC Section 289(a) or (j)
- Sexual penetration or rape in concert (gang rape) under PC Section 264.1
SB 1129 Effect On Attorney Fees and Retirement Benefits
SB 1129 further limits the capability of a spouse found guilty of a domestic violence felony or violent sexual felony against their spouse to receive:
- Community interest in their retirement plans, and
- Attorney’s fee in divorce cases
Effect On Attorney Fee
The bill states that attorney’s fees and other costs the parties incurred will come from the marital (community) assets. Nevertheless, that is only possible if economic circumstances warrant it. The injured spouse will not pay the convicted spouse's attorney’s fees out of their separate property. An injured spouse is one against whom the offending spouse committed a domestic violence felony or violent sexual felony.
The bill also provides that the injured spouse can request a change of the separation date. They can request that the separation date be the day the incident that resulted in the sentencing occurred or earlier. The court can, however, grant the request for an earlier separation date only if it finds justifying circumstances. Family Code 70 defines the date of separation. The date of separation refers to the date a final and complete break in a marriage has occurred.
Effect on Community Interest in the Retirement Plan
SB 1129 limits the offending spouse's capability to receive community interest in their retirement plans. According to this law, the hurt spouse will receive 100% of the community property interest in their pension and retirement benefits. That means the offending spouse has no right to claim the same from the injured spouse.
When determining how and whether to allocate the community property interest, the court considers these factors:
- The misdemeanor domestic violence conviction involved.
- Evidence of other domestic violence instances between the parties involved
- Evidence of the convicted spouse’s record as a domestic violence victim
- The balance of the hardships for every party
- The degree to which the offending spouse contributed to the injured spouse attaining education, a job, training, or license
- The marriage duration and when the domestic violence incidents occurred
- The level to which the offending spouse's future or present earning ability is impeded by unemployment periods they incurred during the union to allow them to commit time to domestic responsibilities
- Other factors the judge determines are equitable and just
However, there is an exception to SB 1129, giving the offending spouse a little bit of relief. This law may not apply if the offending spouse submits evidence of their history as the victim of:
- A violent sexual crime, or
- Domestic violence the injured spouse committed
In this case, the court will examine the case facts. It may then determine that one or several of SB 1129 do not apply.
The Logic Behind Senate Bill 1129
SB 1129 proponents support it since it helps prevent and curb violent sexual felonies and domestic violence instances. That, in turn, assists in protecting victims from harm. It also helps protect children from abusive parents. Senator Bill Monning introduced this bill. It amends Family Code Sections 4325 and 4324.5 of the California Family Code.
Laws Before SB 1129
SB 1129 amended California divorce laws. The current laws are harsher on people found guilty of sex crimes and domestic violence against their spouses. Before the passing of the bill, the old law:
- Had prohibited spouses from receiving alimony if they perpetrated a violent sexual felony against their spouse. Current laws now impose this prohibition on those guilty of domestic violence felony, too.
- Significantly restricted spouses’ ability to claim alimony if they are guilty of a domestic violence act against their spouse. This applied to both misdemeanor and felony domestic violence charges.
SB 1129 expanded the utilization of domestic violence convictions to establish alimony awards. California statute had already prohibited a spouse convicted of sexual, domestic violence from obtaining alimony from the injured spouse. For non-sexual domestic violence, the law has created a rebuttable presumption against alimony for the convicted spouse.
The new law expands the ban on receiving alimony for any domestic violence felony. That means even if a domestic violence crime is not sexual, the convicted spouse will not obtain alimony. The law also keeps the rebuttable presumption rule only for domestic violence misdemeanors. Also, the new law specifies the kind of evidence a judge may use to evaluate whether a domestic violence conviction applies. It also specifies that if a domestic violence victim has:
- Retirement pension, or
- For other benefits, a judge might award them 100% of the community property interest in those retirement benefits.
That would bar a convicted spouse from receiving the injured victim's retirement benefits after the divorce.
Other Factors Influencing Spousal Support In Light of SB 1129
Apart from a conviction of domestic violence or sexually violent felonies, the court also considers other factors in awarding alimony. Family Code 4320 lists these factors. Some of them include:
Health and Age of the Couple
Every spouse's health and age can affect their capability to earn money and support themselves. When determining alimony orders, the judge considers every party's mental and physical health. Health-related aspects may affect the amount and duration of alimony granted. Here are instances of how health and age can influence the court when determining alimony duration and amount:
- Fixed and retirement income—Let us say the supporting partner is near retirement and has a fixed, stable income in retirement benefits. Conversely, the supported partner is young and without financial security. In this case, the court might award alimony to bridge the gap.
- Reduced earning capacity—If the supported partner experiences health problems and is older, this may limit their capability to find employment or work. In that case, the judge might award higher alimony. Age-related restrictions like chronic health or reduced mobility can affect the supported partner’s earning capacity. That might lead to a longer alimony duration.
- Healthcare expenses—If one spouse has serious health problems that need ongoing expenses or medical treatment, the court might consider healthcare costs when deciding on alimony. The supported partner’s health condition might require higher alimony to pay medical bills. Thus, the court might extend the alimony duration to provide ongoing financial help.
Contribution to the Marriage
The court considers non-financial and financial contributions to the marital union. This includes examining factors like childrearing, homemaking, and supporting the other partner's career. Family courts value non-financial contributions. They acknowledge the significance of equitable compensation for all the sacrifices made in the marriage.
Standard of Living During Marriage
Living standards during a marital union are a crucial consideration in alimony determinations. That is because it mirrors the lifestyle to which the couple became accustomed. Judges try to ensure the supported partner can enjoy a lifestyle reasonably consistent with what they established during the union. If you seek alimony, you want to provide comprehensive information regarding how you lived during the union. It will enable the judge to make informed and fair decisions.
Income and Earning Capacity of the Couple
The judge assesses each spouse's earning capacity and financial resources. If one partner has a higher earning capacity or income, the judge may require them to provide support. Analyzing income and earning capacity includes evaluating every spouse's:
- Job opportunities
- Marketable skills
- The expenses and time needed for the supported partner to obtain training or education.
Length of marriage
Family court judges usually consider the duration of the marriage when determining the duration and amount of alimony. Longer unions may result in longer-lasting and higher alimony orders. The judge considers unions of varying lengths. Thus, they might apply different criteria depending on whether the union is long-, mid-, or short-term.
Duration of Alimony
The court generally aims to provide alimony for a period that enables the supported partner to support themselves. Various factors may influence the duration of spousal support. These include the supported party's capability to:
- Complete education
- Secure employment
- Have financial independence
In particular cases, however, alimony may last indefinitely. This is especially so in long-term unions where the supported partner has challenges supporting themselves. Long-term unions refer to those that last at least ten years. The court treats these marriages differently. That is because there are plenty of factors to consider, like capability to be employed and work history.
The General Law on Attorney Fees During Divorce
Family Code 2032 permits the separate assets or income of the partner in a superior financial position to pay for the lawyer fees of a partner in an inferior financial position. Generally, a temporary restraining order automatically goes into effect after divorce filing. The order prohibits using or transferring separate and community assets. However, sometimes, paying a lawyer's fees is possible without obtaining clear permission from the other partner.
The judge will consider virtually all income sources, including assets and earnings. Other factors looked at may include earning capacity. That means to establish a spouse's earning potential in the present workforce, the court will consider the following:
- The number of degrees the spouse has and
- Their employment record to establish
The court will also consider other factors, such as whether one partner is:
- Delaying court proceeding
- Being unyielding
- Participating in other conduct the court deems unreasonable
The General Law on Pension Plans and Retirement Benefits Division
California is a community property state. Any property earned in a marriage is community property (marital property). Community property also includes the expended labor and the resulting fruits during a marital union. Retirement benefits are a type of deferred compensation for the labor used during employment years. These benefits are community assets. That is true whether vested at the period of divorce or not.
Defined contribution retirement plans such as 401(k), 457, or 403(b) accounts are also community property. So are SEPs or IRAs. That is because any deposits made in those accounts are from marital funds. Pension plans are similarly deemed community property.
In a divorce, each partner has the right to half of every community property interest. However, things are different for pension plans and retirement benefits. In these two cases, a worker's life usually lasts longer than a union that ends in divorce. Therefore, pension plans and retirement benefits are usually separate and community property simultaneously.
Rights to community property accrue from the marriage date until the separation date. If the employed spouse received retirement benefits before marriage, those benefits will be separate property. If that spouse continues to work after separation, the benefits will be separate property, too.
If the employed spouse qualifies for retirement but opts not to, their spouse still has the right to their part of retirement benefits. A partner will not avoid paying the other partner benefits by declining to retire. Additionally, either spouse's death does not eliminate the entitlement to obtain retirement benefits. It is worth noting that federal statutes cover certain pension plans. These statutes preempt state laws on community property. Therefore, where a federal statute regulates asset distribution, that law applies.
As mentioned, every spouse has a right to half of every community property interest. Per this rule of thumb, the court divided each asset individually. For retirement benefits, the court allows a non-pro-rata distribution. The employed spouse may have a right to retain all their retirement benefits. That is true if:
- They compensate their spouse for their interest in the community property portion or
- Other assets offset their spouse's half of the community interest.
For example, the unemployed spouse might retain the family house while the employed spouse might keep their retirement benefits. However, this arrangement is only possible if the unemployed spouse’s half of the community interest is relatively fair.
Find an Experienced Family Law Attorney Near Me
If you wish to know how SB 1129 affects your divorce, we at San Diego Family Law Attorney can help. You want to understand how this law affects you and your property so you are not surprised when you start the process. It will help you understand your rights and what to expect during divorce.
Our divorce lawyers will assess the facts of your case and advise you accordingly. Not only that, but they will also help you throughout the divorce proceedings and ensure everything turns out well. Call us at 619-610-7425 for a consultation and case evaluation.
