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Third Substitute S.B. 96

Senator Lyle W. Hillyard proposes the following substitute bill:


             1     
ALIMONY AMENDMENTS

             2     
2011 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Chief Sponsor: Lyle W. Hillyard

             5     
House Sponsor: Kay L. McIff

             6     
             7      LONG TITLE
             8      General Description:
             9          This bill creates a new section regarding alimony.
             10      Highlighted Provisions:
             11          This bill:
             12          .    defines fault and cohabit;
             13          .    requires that a court ordering alimony in excess of $1,000 per month for at least 60
             14      months require a plan for self-sufficiency from the recipient;
             15          .    lists factors the court is to take into consideration when ordering alimony with a
             16      systematic decrease provision;
             17          .    creates a rebuttable presumption of cohabitation if two non-related persons reside in
             18      the same location; and
             19          .    makes technical corrections.
             20      Money Appropriated in this Bill:
             21          None
             22      Other Special Clauses:
             23          None
             24      Utah Code Sections Affected:
             25      AMENDS:


             26          30-2-5, as last amended by Laws of Utah 2008, Chapter 3
             27          30-3-5, as last amended by Laws of Utah 2010, Chapter 285
             28      ENACTS:
             29          30-3-5.3, Utah Code Annotated 1953
             30     
             31      Be it enacted by the Legislature of the state of Utah:
             32          Section 1. Section 30-2-5 is amended to read:
             33           30-2-5. Separate debts.
             34          (1) Neither spouse is personally liable for the separate debts, obligations, or liabilities
             35      of the other:
             36          (a) contracted or incurred before marriage;
             37          (b) contracted or incurred during marriage, except family expenses as provided in
             38      Section 30-2-9 ;
             39          (c) contracted or incurred after divorce or an order for separate maintenance under this
             40      title, except the spouse is personally liable for that portion of the expenses incurred on behalf
             41      of a minor child for reasonable and necessary medical and dental expenses, and other similar
             42      necessities as provided in a court order under Section 30-3-5 , 30-4-3 , or 78B-12-212 , or an
             43      administrative order under Section 62A-11-326 ; or
             44          (d) ordered by the court to be paid by the other spouse under Section 30-3-5 , 30-3-5.3 ,
             45      or 30-4-3 and not in conflict with Section 15-4-6.5 or 15-4-6.7 .
             46          (2) The wages, earnings, property, rents, or other income of one spouse may not be
             47      reached by a creditor of the other spouse to satisfy a debt, obligation, or liability of the other
             48      spouse, as described under Subsection (1).
             49          Section 2. Section 30-3-5 is amended to read:
             50           30-3-5. Disposition of property -- Maintenance and health care of parties and
             51      children -- Division of debts -- Court to have continuing jurisdiction -- Custody and
             52      parent-time -- Nonmeritorious petition for modification.
             53          (1) When a decree of divorce is rendered, the court may include in it equitable orders
             54      relating to the children, property, debts or obligations, and parties. The court shall include the
             55      following in every decree of divorce:
             56          (a) an order assigning responsibility for the payment of reasonable and necessary


             57      medical and dental expenses of the dependent children including responsibility for health
             58      insurance out-of-pocket expenses such as co-payments, co-insurance, and deductibles;
             59          (b) (i) if coverage is or becomes available at a reasonable cost, an order requiring the
             60      purchase and maintenance of appropriate health, hospital, and dental care insurance for the
             61      dependent children; and
             62          (ii) a designation of which health, hospital, or dental insurance plan is primary and
             63      which health, hospital, or dental insurance plan is secondary in accordance with the provisions
             64      of Section 30-3-5.4 which will take effect if at any time a dependent child is covered by both
             65      parents' health, hospital, or dental insurance plans;
             66          (c) pursuant to Section 15-4-6.5 :
             67          (i) an order specifying which party is responsible for the payment of joint debts,
             68      obligations, or liabilities of the parties contracted or incurred during marriage;
             69          (ii) an order requiring the parties to notify respective creditors or obligees, regarding
             70      the court's division of debts, obligations, or liabilities and regarding the parties' separate,
             71      current addresses; and
             72          (iii) provisions for the enforcement of these orders; and
             73          (d) provisions for income withholding in accordance with Title 62A, Chapter 11,
             74      Recovery Services.
             75          (2) The court may include, in an order determining child support, an order assigning
             76      financial responsibility for all or a portion of child care expenses incurred on behalf of the
             77      dependent children, necessitated by the employment or training of the custodial parent. If the
             78      court determines that the circumstances are appropriate and that the dependent children would
             79      be adequately cared for, it may include an order allowing the noncustodial parent to provide
             80      child care for the dependent children, necessitated by the employment or training of the
             81      custodial parent.
             82          (3) The court has continuing jurisdiction to make subsequent changes or new orders for
             83      the custody of the children and their support, maintenance, health, and dental care, and for
             84      distribution of the property and obligations for debts as is reasonable and necessary.
             85          (4) Child support, custody, visitation, and other matters related to children born to the
             86      mother and father after entry of the decree of divorce may be added to the decree by
             87      modification.


             88          (5) (a) In determining parent-time rights of parents and visitation rights of grandparents
             89      and other members of the immediate family, the court shall consider the best interest of the
             90      child.
             91          (b) Upon a specific finding by the court of the need for peace officer enforcement, the
             92      court may include in an order establishing a parent-time or visitation schedule a provision,
             93      among other things, authorizing any peace officer to enforce a court-ordered parent-time or
             94      visitation schedule entered under this chapter.
             95          (6) If a petition for modification of child custody or parent-time provisions of a court
             96      order is made and denied, the court shall order the petitioner to pay the reasonable attorneys'
             97      fees expended by the prevailing party in that action, if the court determines that the petition
             98      was without merit and not asserted or defended against in good faith.
             99          (7) If a petition alleges noncompliance with a parent-time order by a parent, or a
             100      visitation order by a grandparent or other member of the immediate family where a visitation or
             101      parent-time right has been previously granted by the court, the court may award to the
             102      prevailing party costs, including actual attorney fees and court costs incurred by the prevailing
             103      party because of the other party's failure to provide or exercise court-ordered visitation or
             104      parent-time.
             105          [(8) (a) The court shall consider at least the following factors in determining alimony:]
             106          [(i) the financial condition and needs of the recipient spouse;]
             107          [(ii) the recipient's earning capacity or ability to produce income;]
             108          [(iii) the ability of the payor spouse to provide support;]
             109          [(iv) the length of the marriage;]
             110          [(v) whether the recipient spouse has custody of minor children requiring support;]
             111          [(vi) whether the recipient spouse worked in a business owned or operated by the payor
             112      spouse; and]
             113          [(vii) whether the recipient spouse directly contributed to any increase in the payor
             114      spouse's skill by paying for education received by the payor spouse or allowing the payor
             115      spouse to attend school during the marriage.]
             116          [(b) The court may consider the fault of the parties in determining alimony.]
             117          [(c) As a general rule, the court should look to the standard of living, existing at the
             118      time of separation, in determining alimony in accordance with Subsection (8)(a). However, the


             119      court shall consider all relevant facts and equitable principles and may, in its discretion, base
             120      alimony on the standard of living that existed at the time of trial. In marriages of short
             121      duration, when no children have been conceived or born during the marriage, the court may
             122      consider the standard of living that existed at the time of the marriage.]
             123          [(d) The court may, under appropriate circumstances, attempt to equalize the parties'
             124      respective standards of living.]
             125          [(e) When a marriage of long duration dissolves on the threshold of a major change in
             126      the income of one of the spouses due to the collective efforts of both, that change shall be
             127      considered in dividing the marital property and in determining the amount of alimony. If one
             128      spouse's earning capacity has been greatly enhanced through the efforts of both spouses during
             129      the marriage, the court may make a compensating adjustment in dividing the marital property
             130      and awarding alimony.]
             131          [(f) In determining alimony when a marriage of short duration dissolves, and no
             132      children have been conceived or born during the marriage, the court may consider restoring
             133      each party to the condition which existed at the time of the marriage.]
             134          [(g) (i) The court has continuing jurisdiction to make substantive changes and new
             135      orders regarding alimony based on a substantial material change in circumstances not
             136      foreseeable at the time of the divorce.]
             137          [(ii) The court may not modify alimony or issue a new order for alimony to address
             138      needs of the recipient that did not exist at the time the decree was entered, unless the court
             139      finds extenuating circumstances that justify that action.]
             140          [(iii) In determining alimony, the income of any subsequent spouse of the payor may
             141      not be considered, except as provided in this Subsection (8).]
             142          [(A) The court may consider the subsequent spouse's financial ability to share living
             143      expenses.]
             144          [(B) The court may consider the income of a subsequent spouse if the court finds that
             145      the payor's improper conduct justifies that consideration.]
             146          [(h) Alimony may not be ordered for a duration longer than the number of years that
             147      the marriage existed unless, at any time prior to termination of alimony, the court finds
             148      extenuating circumstances that justify the payment of alimony for a longer period of time.]
             149          [(9) Unless a decree of divorce specifically provides otherwise, any order of the court


             150      that a party pay alimony to a former spouse automatically terminates upon the remarriage or
             151      death of that former spouse. However, if the remarriage is annulled and found to be void ab
             152      initio, payment of alimony shall resume if the party paying alimony is made a party to the
             153      action of annulment and his rights are determined.]
             154          [(10) Any order of the court that a party pay alimony to a former spouse terminates
             155      upon establishment by the party paying alimony that the former spouse is cohabitating with
             156      another person.]
             157          Section 3. Section 30-3-5.3 is enacted to read:
             158          30-3-5.3. Alimony.
             159          (1) As used in this section:
             160          (a) "Cohabit" means two non-related persons living together in a romantic relationship.
             161          (b) "Fault" means any action that affects the mental, physical, or emotional condition
             162      of a party being awarded alimony or the person ordered to pay alimony that reduces that party's
             163      ability to earn income at the party's full capability. Fault may include sexual intimacy with
             164      another person, severe physical or mental abuse, addiction to pornography, or other action that
             165      causes the marriage to end.
             166          (c) "Self-sufficiency" means the ability to support oneself at the level that the parties
             167      were living at the time of the separation taking into consideration the loss of available money
             168      due to the costs incurred in supporting separate households.
             169          (2) In any temporary orders or final decree of divorce, the court may order a party to
             170      pay alimony to the other party, taking into consideration the following factors:
             171          (a) the financial condition and needs of the recipient party;
             172          (b) the recipient's earning capacity or ability to produce income;
             173          (c) the ability of the payor party to provide support;
             174          (d) the length of the marriage;
             175          (e) whether the recipient has custody of minor children requiring support;
             176          (f) whether the recipient worked in a business owned or operated by the payor;
             177          (g) whether the recipient directly contributed to any increase in the payor's skill by
             178      paying for education received by the payor or allowing the payor to attend school during the
             179      marriage; and
             180          (h) whether the recipient has stayed home to care for their minor children by joint


             181      agreement of the parties.
             182          (3) Any temporary order of alimony may be modified at the time of the trial when there
             183      are gross misrepresentations of the income of either party or the temporary order reserves the
             184      issue of alimony to be reviewed at the trial.
             185          (4) The court may consider fault of the parties in determining alimony.
             186          (5) The court may not order a spouse who has been the victim of domestic violence to
             187      pay alimony to the other spouse if the other spouse is convicted of the crime of domestic
             188      violence, unless otherwise ordered by the court.
             189          (6) As a general rule, the court should look to the standard of living existing at the time
             190      of separation in determining alimony.
             191          (a) The court shall consider all relevant facts and equitable principles and may, in its
             192      discretion, base alimony on the standard of living that existed at the time of trial.
             193          (b) In marriages of short duration, when no children have been conceived or born
             194      during the marriage, the court may consider the standard of living that existed at the time of the
             195      marriage.
             196          (c) The court may, under appropriate circumstances, attempt to equalize the parties'
             197      respective standards of living.
             198          (7) When a marriage of long duration dissolves on the threshold of a major change in
             199      the income of one of the spouses due to the collective efforts of both, that change shall be
             200      considered in dividing the marital property and in determining the amount of alimony. If one
             201      party's earning capacity has been greatly enhanced through the efforts of both parties during the
             202      marriage, the court may make a compensating adjustment in dividing the marital property and
             203      awarding alimony.
             204          (8) (a) The court has continuing jurisdiction to make substantive changes and new
             205      orders regarding alimony based on a substantial material change in circumstances not
             206      foreseeable at the time of the divorce.
             207          (b) The court may not modify alimony or issue a new order for alimony to address
             208      needs of the recipient that did not exist at the time the decree was entered, unless the court
             209      finds extenuating circumstances that justify that action.
             210          (c) In determining alimony, the income of any subsequent spouse of the payor may not
             211      be considered, except as provided in this Subsection (8)(c).


             212          (i) The court may consider the subsequent spouse's financial ability to share living
             213      expenses.
             214          (ii) The court may consider the income of a subsequent spouse if the court finds that
             215      the payor's improper conduct justifies that consideration.
             216          (9) Alimony may not be ordered for a duration longer than the number of years that the
             217      marriage existed unless, at any time prior to termination of alimony, the court finds extenuating
             218      circumstances that justify the payment of alimony for a longer period of time.
             219          (10) A party seeking alimony in an amount in excess of $1,000 per month for at least
             220      60 months shall submit, along with the financial declaration and settlement proposal when the
             221      case is certified as ready for trial, a plan detailing a course of action the recipient will undertake
             222      in order to try to become more self-sufficient or specific facts that demonstrate why the
             223      recipient is not able to become more self-sufficient, unless the parties have reached a
             224      stipulation regarding alimony. The court may waive this requirement if it makes specific
             225      findings that the recipient is not able to become more self-sufficient. Unless the court orders
             226      otherwise, alimony in excess of $1,000 per month for more than 60 months may not be
             227      awarded if a plan is not submitted.
             228          (11) If the court determines that the recipient party has the ability to become more
             229      self-sufficient, it may order that the amount of alimony be increased by a certain amount over a
             230      specified time period to allow the recipient time to pursue training or education necessary to
             231      become more self-sufficient. The court shall take a number of factors into consideration when
             232      determining how long it may take a recipient to become more self-sufficient. The factors shall
             233      include:
             234          (a) the age of the recipient;
             235          (b) the educational background of the recipient;
             236          (c) whether there are minor children still in the recipient's household; and
             237          (d) any difficulty the recipient might face in obtaining training or education necessary
             238      to become self-sufficient.
             239          (12) Where the income generated by the recipient has increased at least $1,000 from
             240      the last determination of income a court may reduce the alimony paid by $100 per month for
             241      every $200 per month of income generated or imputed to the recipient unless the court finds
             242      otherwise.


             243          (13) Unless a decree of divorce specifically provides otherwise, any order of the court
             244      that a party pay alimony to the other party automatically terminates upon the remarriage of the
             245      recipient or the death of either party. If the remarriage is annulled or found to be void ab initio,
             246      payment of alimony shall resume if the payor is made a party to the action of annulment, the
             247      payor's rights are presented, and the court finds that restoring the prior alimony order would not
             248      be fair.
             249          (14) (a) Any order of the court that a party pay alimony to a former spouse may be
             250      reduced or terminated by the court if the party paying alimony establishes that the recipient is
             251      cohabiting with another person.
             252          (b) There is a rebuttable presumption that, if a person spends seven or more nights in a
             253      14-day period at a common residence with a person with whom they have a romantic
             254      relationship, the two persons are cohabiting.
             255          (15) This section applies to all divorces filed on or after May 10, 2011, and all divorce
             256      actions not final as of May 10, 2011.


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