Senate Bill 1129 is an amendment of Sections 4324.5 and 4325 of the California Family Code. It expands the consideration of domestic violence convictions when determining spousal support payments. Even before the passage of the bill, California law prohibited people convicted of sexual domestic violence from receiving spousal support from the victim or the hurt spouse. For non-sexual domestic violence offenses, the law imposed a rebuttable presumption against granting the abuser spousal support.
The new rule, after the passage of Senate Bill 1129, expanded the ban on receiving spousal support payment to all felony domestic violence offenses, even the non-sexual ones. The new law reserves the presumption against granting the abuser spousal support for misdemeanor offenses. The amendment provides specific guidelines on the type of evidence the court should consider when determining whether a domestic violence charge applies.
California Divorce Laws
Divorce is not a common occurrence, and if you are about to begin the legal process to end your marriage, the process you will follow is most likely new to you. California is a no-fault divorce state. This means the spouse applying for divorce does not have to prove fault or wrongdoing on the partner's side. Besides permanent legal incapacity, which rarely applies, the leading cause of divorce in California is irreconcilable differences. These differences indicate that a couple cannot get along, and there is no chance of reconciliation. The no-fault method results in an uncomplicated and less stressful divorce.
To apply for divorce in California, you must meet specific residency requirements. You or your partner must have resided in the state for a minimum of six months and in the county where you intend to file for divorce for a minimum of three months before you file a petition. If you do not match this residency criteria, you might have to wait and consider pursuing legal separation.
The divorce procedure begins when one spouse, the petitioner, files a petition for divorce in court. The petition provides basic information regarding the marriage, like the marriage date, children born from the union, and the property involved. It also outlines the petitioner's demands for property sharing, child support, custody, and spousal support.
After filing the petition, the petitioner must serve the partner, the respondent, with a copy of the petition and the applicable summons. A process server, the mail, or a sheriff can be used to serve the petition. The respondent will have thirty days after receding the petition to file a response.
Senate Bill 1129 Explained
The former California Governor Jerry Brown signed into law the Senate Bill 1129 in September 2018. This bill applies to divorce trials and has two significant effects on divorce laws. The impacts are:
- It significantly limits the availability of spousal support payment to partners convicted of domestic violence misdemeanors if the offense was perpetrated on the partner.
- It does not allow spousal support payment to partners convicted of violent/serious sexual felony or felony domestic violence if the crime was perpetrated on the partner
This law also restricts the above offender's efforts to secure:
- Interest in retirement plans
- Attorney's fee in divorce lawsuits
Senate Bill 1129 is a game-changer in California law. It imposes harsh penalties on people who perpetrate domestic violence offenses and sex crimes against their spouses.
What Is Domestic Violence
According to domestic violence statutes, domestic violence is the abuse of an intimate partner. An intimate partner can include any of the following:
- A former or current fiance
- Former or current recognized domestic partner
- Former or current spouse
- Someone the defendant is seriously dating or has seriously dated previously
- An individual with whom the defendant has had or has a child
- A current or former live-in romantic partner
You can be guilty of committing abuse if you recklessly or intentionally use or threaten to apply physical force on an intimate partner. Neglect, threats, abuse, and battery are the typical domestic violence crimes.
Most domestic violence offenses are prosecuted as wobblers. A wobbler offense is a crime that the prosecutor can treat as a misdemeanor crime or a felony based on the following:
- Your criminal history, if any
- The severity of the victim's injuries, if applicable
- The circumstances surrounding your crime
You could face a jail term that does not exceed one month if you are sentenced to a misdemeanor domestic violence. The court can sentence you to misdemeanor probation if you are sentenced with a misdemeanor offense and it is your first violation.
Some of the common domestic violence offenses under California law include:
Corporal Injury On A Spouse
It is an offense to impose corporal injury on a spouse, even if the injury results in the slightest physical injury. Corporal injury on a spouse is a felony offense.
Domestic Battery
You can face misdemeanor domestic battery charges if you inflict force or physical violence on your spouse or intimate partner. Under California's domestic battery laws, the victim does not need to suffer visible injuries. Domestic battery is a misdemeanor offense with a potential punishment of one year jail time in county jail and fines of up to $2,000. Domestic battery becomes a felony if the victim suffers severe injuries. The penalties for a felony conviction include imprisonment of up to 4 years in state prison and fines of up to $10,000.
Criminal Threats
It is a criminal offense to threaten your spouse or intimate partner with serious harm. This offense can be a felony or misdemeanor. If sentenced with a misdemeanor criminal threat, you can face up to one year of jail time. A felony conviction can attract up to four years imprisonment and fines of up to $10,000. A felony conviction of criminal threats is a serious felony and will count as a strike on your criminal record.
Stalking
It is an offense to harass or threaten another person to the point that the person fears for their safety or the safety of their loved ones. Depending on your criminal history, stalking can be a misdemeanor or felony. A misdemeanor conviction can attract a one-year jail time. A felony conviction can attract up to five years' imprisonment and fines of up to $10,000.
Revenge Porn
Revenge porn is a misdemeanor offense. It is a type of cyber harassment that occurs when a person distributes sexual photos of another person, like an ex-spouse or intimate partner. It must be evident that the person who distributed the sexual content intended to cause the victim emotional distress.
Revenge porn attracts a jail time of up to one year. A conviction can also attract a fine of up to $1000 for a first offense and $2000 for a subsequent offense.
Posting Harmful Information On The Internet
Posting harmful information on the internet is a relatively new domestic violence offense. This crime is also known as cyberstalking or indirect electronic harassment. Charges can result if someone posts or emails harmful information about another person. The perpetrator does this intending to make other people harass the victim. This crime is common in domestic settings where one party uses the internet to attack or take revenge on the other party. This misdemeanor offense is punishable by fines of up to $1000 and jail time of up to one year.
Domestic violence offenses have other potential consequences, including the following:
- A mandatory minimum jail time
- Paying restitution to the victim or a domestic violence fund
- Participation in a batterer's program
- Loss of custody rights
- Permanent criminal record
- Loss of gun rights
- Immigration consequences
Senate Bill 1129 And The New Laws
Senate Bill 1129 applies to divorce convictions. This statute does the following:
- Presumes that the availability of spousal support payment to partners convicted of misdemeanor domestic violence offenses is not allowed if the act was perpetrated on the partner.
- Does not allow spousal support payment to those spouses charged with violent/serious sexual felony or felony domestic violence if the crime was perpetrated on the partner
Senate Bill 1129 applies to any marriage dissolution proceeding where one partner has a conviction of domestic violence crime on the partner within a certain period. A rebuttable presumption exists, impacting the burden to prove that an award of permanent or temporary spousal support payment to the liable partner should apply.
In another spousal support trial, Senate Bill 1129 prohibits an award of spousal support payment to the partner who has a conviction of a sexual felony on the partner.
In a spousal support hearing where a spouse is sentenced for a sexual felony on the partner, within a certain period, the law prohibits the guilty spouse from receiving support from the hurt spouse. The law also outlines that the court should seek the payment of attorney fees from the community assets. California law also authorizes the day the incident resulting in a conviction occurred or another earlier date to be the official separation date. The law also entitles the hurt spouse (victim) to a 100% interest in their retirement benefits and pension.
Senate Bill 1129 modifies the presumption against awarding temporary /permanent support applicable to criminal sentences for a domestic violence act. The bill distinguishes between criminal sentences for domestic violence felonies and domestic violence misdemeanors by defining these two types of sentences. Under this bill, a felony domestic violence charge prohibits awards revolving around:
- Spousal support
- Attorney fees
- Pension and retirement benefits
- Setting the separation date
These awards are restricted similarly to restrictions following a sexual felony conviction.
However, the bill allows the law court to decide that one of the above restrictions to awards does not apply based on a case's fact. The court can remove some restrictions if the guilty spouse avails of documented evidence showing that the spouse has been a domestic violence victim or severe sexual offense by the partner.
Under Senate Bill 1129, a misdemeanor domestic violence charge requires a rebuttable presumption against awards prohibited in convictions for violent sexual felonies and felony domestic violence. The only exception is that the hurt spouse will not be automatically entitled to the entire community interest in their pension and retirement benefits. Based on a case's facts, the bill allows the law court to decide if the victim/hurt spouse has a right to 100% interest in their pension or retirement benefits. Some of the factors the court considers when making this determination include:
- Marriage duration
- Documented evidence on domestic violence incidents
The bill establishes prohibition effectiveness periods in violent/serious sexual felony convictions and felony domestic violence convictions. It also establishes periods for the efficacy of rebuttable presumption in misdemeanor domestic violence convictions. This bill's changes apply to convictions on or before January 1, 2019.
Section 4324.5 Of California Family Code
If a spouse has been found guilty of a severe sexual offense or domestic abuse and the divorce petition is submitted before 5 years have passed since the sentence and incarceration, probation, or parole, these rules will apply:
- It is forbidden for the hurt spouse to grant spousal support payment to the guilty spouse
- If the economic conditions permit, the court should order that the communal assets cover the parties' attorney fees and other costs. The aggrieved spouse will not be obliged to pay the guilty spouse's attorney fees out of their separate property.
- At the injured partner's request, the separation date, as outlined in Sec 70, will be the day of the occurrence that resulted in the sentence or another earlier date if the law court deems the circumstances justify another earlier date.
- The hurt spouse will have a right to 100% of the interest in the hurt spouse's retirement & pension benefits. This Section uses these definitions: felony domestic violence refers to a crime of abuse acts, as defined in Sec 6203, committed by one partner on the other. A hurt spouse refers to the partner who was the victim of violent sexual crime or felony domestic violence; because of that, the partner was convicted.
- Violent/serious sexual felony refers to the offenses listed in paragraphs (three) (four), (five), (eleven), and (eighteen) of Sec (c) of Sec 667.5 of the PC.
- If liable spouse avail documented evidence regarding the guilty spouse's history as the victim of a serious sexual crime outlined in paragraphs (three), (four), (five), (eleven), and (eighteen) of Sec (c) of Sec 667.5 of the criminal code /domestic violence as outlined in Sec 6211, committed by the partner, the court can decide depending on the details of the case in question, that one or several of Secs one to four including subdivision (c) does not apply
Sec 4325 Of The California Family Code
A rebuttable presumption that the following will apply will exist in any divorce proceeding. There is a conviction for misdemeanor domestic violence or another misdemeanor conviction that leads to term probation under Sec 1203.097 of the Criminal Code violated by one partner on the other and established by the law court five years before the filing for divorce or in the divorce proceeding:
- The hurt spouse cannot grant spousal support payment to the partner.
- If economic conditions allow, the court will require that the communal assets cover the parties' attorney fees and accompanying costs. The aggrieved spouse will not be obliged to pay the guilty spouse's fees out of their separate property.
- At the victim's spouse's request, the separation date, as outlined in Sec 70, will be the day of the occurrence that led to the sentence or another earlier date if the law court establishes circumstances justifying another earlier date.
Why You Need A Divorce Attorney
Interpreting the Senate Bill 1129 and understanding how it affects your divorce case is challenging. This is where a lawyer comes in. If you are in the process of filing for divorce or seeking spousal support and you have a previous conviction of domestic violence or violent sexual, you should contact an attorney immediately. The attorney will help you navigate the intricate legal landscape. Perhaps you have a domestic violence charge on your record, but you have also been a domestic violence victim perpetrated by your spouse. In this case, your attorney can explain to the court that you have also been a domestic violence victim. The court can fail to apply some of the provisions of Senate Bill 1129 to your case.
Even if you have a misdemeanor domestic violence charge, it can still affect your ability to seek spousal support. You should not assume that your charges are minor and fail to seek legal representation. Some people think that only felony domestic violence convictions or violent sexual crimes can affect spousal support claims. This is not the case; even seemingly minor offenses can hinder a spouse from accessing spousal support.
Find An Experienced Divorce Attorney Near Me
Are you in the process of filing for divorce or pursuing spousal support benefits, and do you have a conviction for a violent sexual violation or domestic violence? Perhaps you have been a domestic violence victim or other violent crimes perpetrated by your spouse. Having a conviction of a severe sexual offense or domestic violence can hinder you from seeking spousal support. On the other hand, if you have suffered domestic violence or sexual offense at the hands of your spouse, you should not pay them spousal support. You should contact an attorney to help you understand how Senate Bill 1129 affects divorce laws and how it applies to your case. For prompt legal support and guidance, contact the San Diego Divorce Attorney. Contact us at 858-529-5150 to speak to one of our attorneys.
