No Alimony For Spouses Convicted Of Sexual Assault: AB1522 Crystal HarrisPosted: March 13, 2012
If Crystal Harris has her way, there will be no alimony or attorneys fees for convicted spouses and it’s called Assembly Bill 1522 (AB 1522). Ms. Harris’ husband was convicted by a jury in San Diego, California, of sexually assaulting her and he is now serving a 6 year prison sentence. Yet, a family law judge, ordered Ms. Harris to pay her husband alimony once he gets out of prison and allowed a settlement for her to pay her husband’s attorney’s fees ($47,ooo).
Yes, you read that right.
Turns out in California, judges in divorce proceedings can order alimony except in cases of a spouses conviction for attempted murder or solicitation of murder of their spouse (California Family Code Section 782.5 and 4324) . Yet, you’d think a judge, a family law judge no less, would never make such an order as it further traumatizes the victim and allows for the power and control dynamics of domestic violence to continue. And, in Ms. Harris’ case, it continues for the next 6 years even though her abuser is locked up in prison. Wow, that’s an exercise of judicial discretion especially given a judge has every right not to order alimony, as it is not required by law, and domestic violence convictions and incidents are legitimate factors to deny such an order, but apparently not for Judge Gregory Pollack.
And, now because of the judge’s order, amending the above law is being considered by the California Assembly’s Judicial Committee, Assembly Bill 1522 (AB 1522) to prohibit the next judge from awarding alimony, and attorneys fees to spouses convicted of certain violent sexual felonies under California Penal Code Section 667.5 (rape, sodomy, oral copulation, sexual penetration and assault with intent to commit the foregoing felonies).
On Tuesday March 20, 2012 from 9-11 am, the Judicial Committee of the California Assembly will hold a public hearing on the new bill at the State Capitol in Sacramento. Go voice your opinion. Or, you can contact the committee’s Chairman, Assemblyman Mike Feuer at 916-319-2042 (PO Box 942849 Room 2013, Sacramento CA 94249-0042), the Vice-chair Assemblyman Donald Wagner at 916-319-2070 (State Capitol, Room 4146, Sacramento, CA 94248-0001) and the bill sponsor, Assemblywoman Toni Atkins at 916-319-2076 (PO Box 942849, Room 4146, Sacramento, CA 94249-0076)
The bill will likely pass as it has bipartisan support and, frankly, as a former domestic violence prosecutor, it’s the right thing to do.
Simply my opinion, what say you?
See Crystal Harris’ story on ABC Nightline (4/4/2012):
See facts of case:
Assembly Bill No. 1522 Final Version Signed by Governor, becomes law 1/1/2013.
An act to amend Section 4320 of, and to add Section 4324.5 to, the Family Code, relating to family law.
[Approved by Governor September 28, 2012. Filed with Secretary of State September 28, 2012.]
AB 1522, Atkins. Family law: monetary awards.
Existing law provides that, in addition to any other remedy authorized by law, when a spouse is convicted of attempting to murder the other spouse or of soliciting the murder of the other spouse, the injured spouse shall be entitled to 100% 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 convicted spouse. Existing law defines “injured spouse” for these purposes. Under existing law, a family court is required to consider specified factors in ordering spousal support, including the criminal conviction of an abusive spouse.
This bill would expand the above-described provisions to apply when a spouse is convicted of a specified violent sexual felony against the other spouse, and would require the court to consider the convicted spouse’s criminal conviction for a violent sexual felony in ordering spousal support, as specified. The bill would also require the court to order the attorney’s fees and costs to be paid from the community assets if warranted by economic circumstances. Under the bill, the injured spouse, as defined, would not be required to pay any of the convicted spouse’s attorney’s fees out of his or her separate property. The bill would further, at the request of the injured spouse, define the date of the parties’ legal separation as the date of the incident giving rise to the conviction, or earlier if the court finds that the circumstances justify an earlier date, for community property purposes.
The people of the State of California do enact as follows:
SECTION 1. Section 4320 of the Family Code is amended to read:
4320. In ordering spousal support under this part, the court shall consider all of the following circumstances:
(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 all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, 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.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
SEC. 2. Section 4324.5 is added to the Family Code, to read:
4324.5. (a) In any proceeding for dissolution of marriage where there is a criminal conviction for a violent sexual 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:
Ch. 718 — 2 —
(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) 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.
(3) 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.
(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
Initial Version -Assembly Bill 1522 (AB 1522) reads (with initial revisions in italics):
‘The People of the State of California do enact as follows:
SECTION 1. Section 782.5 of the Family Code is amended to read:
In addition to any other remedy authorized by law, when a spouse is convicted of attempting to murder the other spouse, as punishable pursuant to subdivision (a) of Section 664 of the Penal Code, of soliciting the murder of the other spouse, as punishable pursuant to subdivision (b) of Section 653f of the Penal Code, or of a violent sexual felony against the other spouse as defined in paragraphs (3), (4), (5), (11), and (15), with the exception of assault with intent to commit mayhem, and (18) of subdivision (c), with the exception of assault with intent to commit mayhem, and paragraph (18) of subdivision (c) of Section 667.5 of the Penal Code, the injured spouse shall be entitled to an award to the injured spouse of 100 percent of the community property interest in the retirement and pension benefits of the injured spouse.
As used in this section, “injured spouse” has the same meaning as defined in Section 4324.
Sec. 2. Section 4324 of the Family Code is amended to read:
(a) In addition to any other remedy authorized by law, when a spouse is convicted of attempting to murder the other spouse, as punishable pursuant to subdivision (a) of Section 664 of the Penal Code, of soliciting the murder of the other spouse, as punishable pursuant to subdivision (b) of Section 653f of the Penal Code, or of a violent sexual felony against the other spouse as defined in paragraphs (3), (4), (5), (11), and (15), with the exception of assault with intent to commit mayhem, and (18) of subdivision (c), with the exception of assault with intent to commit mayhem, and paragraph (18) of subdivision (c) of Section 667.5 of the Penal Code, the injured spouse shall be entitled to a prohibition of any temporary or permanent award for spousal support, attorney’s fees, except as provided in subdivision (c), or medical, life, or other insurance benefits or payments from the injured spouse to the convicted spouse.
(b) As used in this section, “injured spouse” means the spouse who has been the subject of the attempted murder, the solicitation of murder, or the violent sexual felony for which the other spouse was convicted, whether or not actual physical injury occurred.
(c) A court may, in any hearing regarding child custody, visitation, or child support, subsequent to the spouse’s conviction as described in subdivision (a), order the injured spouse to pay attorney’s fees, under those extraordinary circumstances where the interest of justice and the best interests of the child or children compel that order, if the convicted spouse has already completed the prison term for which he or she was sentenced. The court shall state its reasons for the order in writing or on the record.
(Update 11/8/2012: The new judge denies husband’s request for Crystal to pay husband’s attorneys fees incurred in Crystal’s appeal of the judgment.)
(Update 9/28/2012: California Governor signs bill into law! One person can make a difference.)
(Update 8/28/2012: Assembly concurred, bill sent to Governor to sign.)
(Update 8/24/2012: AB 1522 is unanimously passed by the Senate. Bill goes to Assembly to vote on changes. Governor to sign or veto bill by 9/30/2012)
(Update 8/21/2012: Senate votes this Thursday 8/23/2012 on AB 1522. Bill expected to pass, than, back to Assembly to vote on bill changes. Governor has until 9/30/2012 to sign or veto bill.)
(Update 7/27/2012: Crystal’s recusal motion granted, Judge Pollack is off the case and the case will be assigned to a new judge.)
(Update 7/3/2102: Senate Judiciary Passes AB 1522 with amendment.)
(Update 6/25/2012: Senate Judiciary to hear and vote on AB 1522 on July 3, 2012 at 9 am Room 112 State Capitol in Sacramento.)
(Update 6/7/2012: Ab 1522 headed to State Senate in June 2012. Date to be confirmed.)
(Update 5/11/2012: California Court of Appeal affirmed verdict and upheld ex-husband’s felony conviction. http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=41&doc_id=1970152&doc_no=D059126.)
(Update 4/12/2012: AB 1522 just passed unanimously by the California Assembly. Next stop, State Senate.)
(Update 4/5/2012: AB 1522 up for full Assembly vote on 4/12/2012. Let the California Assembly Know Your Opinion.)
(Update 3/22/2012: Bill with revisions regarding attorney’s fees passed 7 to 1 (opposed by Assemblyman Bob Wieckowski-Democrat Alameda)