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S.B. 108





Sponsor: Parley Hellewell

             7      This act affects sections of Utah Code Annotated 1953 as follows:
             8      AMENDS:
             9          30-3-5, as last amended by Chapter 232, Laws of Utah 1997
             10      Be it enacted by the Legislature of the state of Utah:
             11          Section 1. Section 30-3-5 is amended to read:
             12           30-3-5. Disposition of property -- Maintenance and health care of parties and
             13      children -- Division of debts -- Court to have continuing jurisdiction -- Custody and visitation
             14      -- Determination of alimony -- Nonmeritorious petition for modification.
             15          (1) When a decree of divorce is rendered, the court may include in it equitable orders
             16      relating to the children, property, debts or obligations, and parties. The court shall include the
             17      following in every decree of divorce:
             18          (a) an order assigning responsibility for the payment of reasonable and necessary medical
             19      and dental expenses of the dependent children;
             20          (b) if coverage is or becomes available at a reasonable cost, an order requiring the purchase
             21      and maintenance of appropriate health, hospital, and dental care insurance for the dependent
             22      children;
             23          (c) pursuant to Section 15-4-6.5 :
             24          (i) an order specifying which party is responsible for the payment of joint debts,
             25      obligations, or liabilities of the parties contracted or incurred during marriage;
             26          (ii) an order requiring the parties to notify respective creditors or obligees, regarding the
             27      court's division of debts, obligations, or liabilities and regarding the parties' separate, current

             28      addresses; and
             29          (iii) provisions for the enforcement of these orders; and
             30          (d) provisions for income withholding in accordance with Title 62A, Chapter 11, Recovery
             31      Services.
             32          (2) The court may include, in an order determining child support, an order assigning
             33      financial responsibility for all or a portion of child care expenses incurred on behalf of the
             34      dependent children, necessitated by the employment or training of the custodial parent. If the court
             35      determines that the circumstances are appropriate and that the dependent children would be
             36      adequately cared for, it may include an order allowing the noncustodial parent to provide child care
             37      for the dependent children, necessitated by the employment or training of the custodial parent.
             38          (3) The court has continuing jurisdiction to make subsequent changes or new orders for
             39      the custody of the children and their support, maintenance, health, and dental care, and for
             40      distribution of the property and obligations for debts as is reasonable and necessary.
             41          (4) (a) In determining visitation rights of parents, grandparents, and other members of the
             42      immediate family, the court shall consider the best interest of the child.
             43          (b) Upon a specific finding by the court of the need for peace officer enforcement, the
             44      court may include in an order establishing a visitation schedule a provision, among other things,
             45      authorizing any peace officer to enforce a court ordered visitation schedule entered under this
             46      chapter.
             47          (5) If a petition for modification of child custody or visitation provisions of a court order
             48      is made and denied, the court shall order the petitioner to pay the reasonable attorneys' fees
             49      expended by the prevailing party in that action, if the court determines that the petition was without
             50      merit and not asserted or defended against in good faith.
             51          (6) If a petition alleges substantial noncompliance with a visitation order by a parent, a
             52      grandparent, or other member of the immediate family pursuant to Section 78-32-12.2 where a
             53      visitation right has been previously granted by the court, the court may award to the prevailing
             54      party costs, including actual attorney fees and court costs incurred by the prevailing party because
             55      of the other party's failure to provide or exercise court-ordered visitation.
             56          (7) (a) The court shall consider at least the following factors in determining alimony:
             57          (i) the financial condition and needs of the recipient spouse;
             58          (ii) the recipient's earning capacity or ability to produce income;

             59          (iii) the ability of the payor spouse to provide support; and
             60          (iv) the length of the marriage.
             61          (b) The court may consider the fault of the parties in determining alimony.
             62          (c) As a general rule, the court should look to the standard of living, existing at the time
             63      of separation, in determining alimony in accordance with Subsection (7)(a). However, the court
             64      shall consider all relevant facts and equitable principles and may, in its discretion, base alimony
             65      on the standard of living that existed at the time of trial. In marriages of short duration, when no
             66      children have been conceived or born during the marriage, the court may consider the standard of
             67      living that existed at the time of the marriage.
             68          (d) The court may, under appropriate circumstances, attempt to equalize the parties'
             69      respective standards of living.
             70          (e) When a marriage of long duration dissolves on the threshold of a major change in the
             71      income of one of the spouses due to the collective efforts of both, that change shall be considered
             72      in dividing the marital property and in determining the amount of alimony. If one spouse's earning
             73      capacity has been greatly enhanced through the efforts of both spouses during the marriage, the
             74      court may make a compensating adjustment in dividing the marital property and awarding alimony.
             75          (f) In determining alimony when a marriage of short duration dissolves, and no children
             76      have been conceived or born during the marriage, the court may consider restoring each party to
             77      the condition which existed at the time of the marriage.
             78          (g) (i) The court has continuing jurisdiction to make substantive changes and new orders
             79      regarding alimony based on a substantial material change in circumstances not foreseeable at the
             80      time of the divorce.
             81          (ii) The court may not modify alimony or issue a new order for alimony to address needs
             82      of the recipient that did not exist at the time the decree was entered, unless the court finds
             83      extenuating circumstances that justify that action.
             84          (iii) In determining alimony, the income of any subsequent spouse of the payor may not
             85      be considered, except as provided in this subsection.
             86          (A) The court may consider the subsequent spouse's financial ability to share living
             87      expenses.
             88          (B) The court may consider the income of a subsequent spouse if the court finds that the
             89      payor's improper conduct justifies that consideration.

             90          (h) Alimony may not be ordered for a duration longer than the number of years that the
             91      marriage existed unless, at any time prior to termination of alimony, the court finds extenuating
             92      circumstances that justify the payment of alimony for a longer period of time.
             93          (8) Unless a decree of divorce specifically provides otherwise, any order of the court that
             94      a party pay alimony to a former spouse automatically terminates upon the remarriage or death of
             95      that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment
             96      of alimony shall resume if the party paying alimony is made a party to the action of annulment and
             97      his rights are determined.
             98          (9) Any order of the court that a party pay alimony to a former spouse terminates upon
             99      establishment by the party paying alimony that the former spouse is cohabitating with another
             100      person.

Legislative Review Note
    as of 1-15-99 9:56 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

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