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First Substitute S.B. 111

Senator Terry R. Spencer proposes the following substitute bill:




Sponsor: Terry R. Spencer

             5      This act modifies provisions relating to Divorce, providing that if a family home is awarded
             6      in a divorce to one party, the other party should receive an equitable lien on the home to
             7      protect any interest they may have.
             8      This act affects sections of Utah Code Annotated 1953 as follows:
             9      AMENDS:
             10          30-3-5, as last amended by Chapter 255, Laws of Utah 2001
             11      Be it enacted by the Legislature of the state of Utah:
             12          Section 1. Section 30-3-5 is amended to read:
             13           30-3-5. Disposition of property -- Maintenance and health care of parties and
             14      children -- Division of debts -- Court to have continuing jurisdiction -- Custody and
             15      parent-time -- Determination of alimony -- Nonmeritorious petition for modification.
             16          (1) When a decree of divorce is rendered, the court may include in it equitable orders
             17      relating to the children, property, debts or obligations, and parties.
             18          (a) If the family home is awarded to one party and the other party is awarded an equitable
             19      lien on the property, the equitable lien shall accrue interest at the current postjudgment interest rate
             20      specified in Section 15-1-4 , unless the court orders otherwise.
             21          (b) The court shall include the following in every decree of divorce:
             22          [(a)] (i) an order assigning responsibility for the payment of reasonable and necessary
             23      medical and dental expenses of the dependent children;
             24          [(b)] (ii) if coverage is or becomes available at a reasonable cost, an order requiring the
             25      purchase and maintenance of appropriate health, hospital, and dental care insurance for the

             26      dependent children;
             27          [(c)] (iii) pursuant to Section 15-4-6.5 :
             28          [(i)] (A) an order specifying which party is responsible for the payment of joint debts,
             29      obligations, or liabilities of the parties contracted or incurred during marriage;
             30          [(ii)] (B) an order requiring the parties to notify respective creditors or obligees, regarding
             31      the court's division of debts, obligations, or liabilities and regarding the parties' separate, current
             32      addresses; and
             33          [(iii)] (C) provisions for the enforcement of these orders; and
             34          [(d)] (iv) provisions for income withholding in accordance with Title 62A, Chapter 11,
             35      Recovery Services.
             36          (2) The court may include, in an order determining child support, an order assigning
             37      financial responsibility for all or a portion of child care expenses incurred on behalf of the
             38      dependent children, necessitated by the employment or training of the custodial parent. If the court
             39      determines that the circumstances are appropriate and that the dependent children would be
             40      adequately cared for, it may include an order allowing the noncustodial parent to provide child care
             41      for the dependent children, necessitated by the employment or training of the custodial parent.
             42          (3) The court has continuing jurisdiction to make subsequent changes or new orders for
             43      the custody of the children and their support, maintenance, health, and dental care, and for
             44      distribution of the property and obligations for debts as is reasonable and necessary.
             45          (4) (a) In determining parent-time rights of parents and visitation rights of grandparents
             46      and other members of the immediate family, the court shall consider the best interest of the child.
             47          (b) Upon a specific finding by the court of the need for peace officer enforcement, the
             48      court may include in an order establishing a parent-time or visitation schedule a provision, among
             49      other things, authorizing any peace officer to enforce a court-ordered parent-time or visitation
             50      schedule entered under this chapter.
             51          (5) If a petition for modification of child custody or parent-time provisions of a court order
             52      is made and denied, the court shall order the petitioner to pay the reasonable attorneys' fees
             53      expended by the prevailing party in that action, if the court determines that the petition was without
             54      merit and not asserted or defended against in good faith.
             55          (6) If a petition alleges substantial noncompliance with a parent-time order by a parent,
             56      or a visitation order by a grandparent or other member of the immediate family pursuant to Section

             57      78-32-12.2 where a visitation or parent-time right has been previously granted by the court, the
             58      court may award to the prevailing party costs, including actual attorney fees and court costs
             59      incurred by the prevailing party because of the other party's failure to provide or exercise
             60      court-ordered visitation or parent-time.
             61          (7) (a) The court shall consider at least the following factors in determining alimony:
             62          (i) the financial condition and needs of the recipient spouse;
             63          (ii) the recipient's earning capacity or ability to produce income;
             64          (iii) the ability of the payor spouse to provide support;
             65          (iv) the length of the marriage;
             66          (v) whether the recipient spouse has custody of minor children requiring support;
             67          (vi) whether the recipient spouse worked in a business owned or operated by the payor
             68      spouse; and
             69          (vii) whether the recipient spouse directly contributed to any increase in the payor spouse's
             70      skill by paying for education received by the payor spouse or allowing the payor spouse to attend
             71      school during the marriage.
             72          (b) The court may consider the fault of the parties in determining alimony.
             73          (c) As a general rule, the court should look to the standard of living, existing at the time
             74      of separation, in determining alimony in accordance with Subsection (7)(a). However, the court
             75      shall consider all relevant facts and equitable principles and may, in its discretion, base alimony
             76      on the standard of living that existed at the time of trial. In marriages of short duration, when no
             77      children have been conceived or born during the marriage, the court may consider the standard of
             78      living that existed at the time of the marriage.
             79          (d) The court may, under appropriate circumstances, attempt to equalize the parties'
             80      respective standards of living.
             81          (e) When a marriage of long duration dissolves on the threshold of a major change in the
             82      income of one of the spouses due to the collective efforts of both, that change shall be considered
             83      in dividing the marital property and in determining the amount of alimony. If one spouse's earning
             84      capacity has been greatly enhanced through the efforts of both spouses during the marriage, the
             85      court may make a compensating adjustment in dividing the marital property and awarding alimony.
             86          (f) In determining alimony when a marriage of short duration dissolves, and no children
             87      have been conceived or born during the marriage, the court may consider restoring each party to

             88      the condition which existed at the time of the marriage.
             89          (g) (i) The court has continuing jurisdiction to make substantive changes and new orders
             90      regarding alimony based on a substantial material change in circumstances not foreseeable at the
             91      time of the divorce.
             92          (ii) The court may not modify alimony or issue a new order for alimony to address needs
             93      of the recipient that did not exist at the time the decree was entered, unless the court finds
             94      extenuating circumstances that justify that action.
             95          (iii) In determining alimony, the income of any subsequent spouse of the payor may not
             96      be considered, except as provided in this Subsection (7).
             97          (A) The court may consider the subsequent spouse's financial ability to share living
             98      expenses.
             99          (B) The court may consider the income of a subsequent spouse if the court finds that the
             100      payor's improper conduct justifies that consideration.
             101          (h) Alimony may not be ordered for a duration longer than the number of years that the
             102      marriage existed unless, at any time prior to termination of alimony, the court finds extenuating
             103      circumstances that justify the payment of alimony for a longer period of time.
             104          (8) Unless a decree of divorce specifically provides otherwise, any order of the court that
             105      a party pay alimony to a former spouse automatically terminates upon the remarriage or death of
             106      that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment
             107      of alimony shall resume if the party paying alimony is made a party to the action of annulment and
             108      his rights are determined.
             109          (9) Any order of the court that a party pay alimony to a former spouse terminates upon
             110      establishment by the party paying alimony that the former spouse is cohabitating with another
             111      person.

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