H.B. 348

This document includes House Committee Amendments incorporated into the bill on Fri, Feb 21, 2003 at 11:31 AM by bhilbert. --> This document includes House Floor Amendments incorporated into the bill on Tue, Feb 25, 2003 at 4:40 PM by bhilbert. --> 1

LIMITATION ON ALIMONY
2 2003 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Wayne A. Harper
5 This act modifies provisions pertaining to alimony. It repeals any justification for
6 continuing alimony for more years than the duration of the marriage, and allows for
7 retrospective application to all orders currently requiring the payment of alimony.
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. The court shall include the
18 following in every decree of divorce:
19 (a) an order assigning responsibility for the payment of reasonable and necessary
20 medical and dental expenses of the dependent children;
21 (b) if coverage is or becomes available at a reasonable cost, an order requiring the
22 purchase and maintenance of appropriate health, hospital, and dental care insurance for the
23 dependent children;
24 (c) pursuant to Section 15-4-6.5 :
25 (i) an order specifying which party is responsible for the payment of joint debts,
26 obligations, or liabilities of the parties contracted or incurred during marriage;
27 (ii) an order requiring the parties to notify respective creditors or obligees, regarding

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

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

90 orders regarding alimony based on a substantial material change in circumstances not
91 foreseeable at the time of the divorce.
92 (ii) The court may not modify alimony or issue a new order for alimony to address
93 needs of the recipient that did not exist at the time the decree was entered, unless the court
94 finds 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
100 the payor's improper conduct justifies that consideration.
101 (h) h (i) h Alimony may not be ordered for a duration longer than the number of years that
101a 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. This Subsection
104 (7) shall apply to all orders for which there is a current or continuing alimony obligation.
104a h (ii) THE PAYOR SPOUSE SHALL PROVIDE WRITTEN NOTICE VIA CERTIFIED MAIL, RETURN
104b RECEIPT REQUESTED, TO A RECIPIENT SPOUSE OF THE INTENTION TO DISCONTINUE ALIMONY
104c PAYMENTS NOT LESS THAN SIX MONTHS BEFORE PAYMENTS WILL CEASE.
104d (iii) IF THE RECIPIENT SPOUSE DOES NOT OBJECT OR REPLY, ALIMONY SHALL BE
104e DISCONTINUED AT THE END OF THE SIX MONTH PERIOD, AND THE PAYOR SPOUSE SHALL FILE
104f AN AFFIDAVIT WITH COPIES OF THE ORIGINAL WRITTEN NOTICE AND RETURN RECEIPT WITH THE
104g COURT. COPIES OF ALL DOCUMENTS FILED WITH THE COURT SHALL BE DELIVERED TO THE
104h RECIPIENT SPOUSE VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED.
104i (iv) IF THE RECIPIENT SPOUSE OBJECTS, EITHER PARTY MAY FILE A PETITION WITH THE
104j COURT TO CONTINUE OR DISCONTINUE ALIMONY. THE BURDEN BEFORE THE COURT TO PROVE
104k THAT EXTENUATING CIRCUMSTANCES EXIST JUSTIFYING THE CONTINUANCE OF ALIMONY
104l PAYMENTS SHALL BE UPON THE RECIPIENT SPOUSE. h THE COURT SHALL CONSIDER WHETHER
104l1 THE ALIMONY AWARD WAS PART OF AN OVERALL SETTLEMENT AND STIPULATED AGREEMENT
104l2 IN THE ORIGINAL DIVORCE ACTION. h IF A PETITION IS FILED, ALIMONY SHALL
104m CONTINUE UNTIL THE COURT MAKES A DETERMINATION. h
105 (8) Unless a decree of divorce specifically provides otherwise, any order of the court
106 that a party pay alimony to a former spouse automatically terminates upon the remarriage or
107 death of that former spouse. However, if the remarriage is annulled and found to be void ab
108 initio, payment of alimony shall resume if the party paying alimony is made a party to the
109 action of annulment and his rights are determined.
110 (9) Any order of the court that a party pay alimony to a former spouse terminates upon
111 establishment by the party paying alimony that the former spouse is cohabitating with another
112 person.

Legislative Review Note
as of 2-10-03 7:02 AM

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

Office of Legislative Research and General Counsel