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H.B. 236





Chief Sponsor: Stephen E. Sandstrom

Senate Sponsor: ____________

             7      LONG TITLE
             8      General Description:
             9          This bill expands the circumstances under which a court may order alimony, and it
             10      increases the length of time alimony may be awarded.
             11      Highlighted Provisions:
             12          This bill:
             13          .    allows a court to consider fault when awarding alimony;
             14          .    defines fault to include acts that substantially and unilaterally compromise a
             15      marriage, harm a spouse, or harm the children of the marriage;
             16          .    allows a court to award additional alimony to a recipient spouse who refrained from
             17      significant employment during the marriage in order to care for minor children so
             18      that the recipient spouse may continue to provide the care for the minor children
             19      after the divorce even if the recipient spouse decides to pursue an education, job
             20      training, or acquires and maintains a professional license; and
             21          .    allows a court to order alimony for a time longer than the duration of the marriage if
             22      the payor spouse was at fault.
             23      Money Appropriated in this Bill:
             24          None
             25      Other Special Clauses:
             26          None
             27      Utah Code Sections Affected:

             28      AMENDS:
             29          30-3-5, as last amended by Laws of Utah 2010, Chapter 285
             31      Be it enacted by the Legislature of the state of Utah:
             32          Section 1. Section 30-3-5 is amended to read:
             33           30-3-5. Disposition of property -- Maintenance and health care of parties and
             34      children -- Division of debts -- Court to have continuing jurisdiction -- Custody and
             35      parent-time -- Determination of alimony -- Nonmeritorious petition for modification.
             36          (1) When a decree of divorce is rendered, the court may include in it equitable orders
             37      relating to the children, property, debts or obligations, and parties. The court shall include the
             38      following in every decree of divorce:
             39          (a) an order assigning responsibility for the payment of reasonable and necessary
             40      medical and dental expenses of the dependent children including responsibility for health
             41      insurance out-of-pocket expenses such as co-payments, co-insurance, and deductibles;
             42          (b) (i) if coverage is or becomes available at a reasonable cost, an order requiring the
             43      purchase and maintenance of appropriate health, hospital, and dental care insurance for the
             44      dependent children; and
             45          (ii) a designation of which health, hospital, or dental insurance plan is primary and
             46      which health, hospital, or dental insurance plan is secondary in accordance with the provisions
             47      of Section 30-3-5.4 which will take effect if at any time a dependent child is covered by both
             48      parents' health, hospital, or dental insurance plans;
             49          (c) pursuant to Section 15-4-6.5 :
             50          (i) an order specifying which party is responsible for the payment of joint debts,
             51      obligations, or liabilities of the parties contracted or incurred during marriage;
             52          (ii) an order requiring the parties to notify respective creditors or obligees, regarding
             53      the court's division of debts, obligations, or liabilities and regarding the parties' separate,
             54      current addresses; and
             55          (iii) provisions for the enforcement of these orders; and
             56          (d) provisions for income withholding in accordance with Title 62A, Chapter 11,
             57      Recovery Services.
             58          (2) The court may include, in an order determining child support, an order assigning

             59      financial responsibility for all or a portion of child care expenses incurred on behalf of the
             60      dependent children, necessitated by the employment or training of the custodial parent. If the
             61      court determines that the circumstances are appropriate and that the dependent children would
             62      be adequately cared for, it may include an order allowing the noncustodial parent to provide
             63      child care for the dependent children, necessitated by the employment or training of the
             64      custodial parent.
             65          (3) The court has continuing jurisdiction to make subsequent changes or new orders for
             66      the custody of the children and their support, maintenance, health, and dental care, and for
             67      distribution of the property and obligations for debts as is reasonable and necessary.
             68          (4) Child support, custody, visitation, and other matters related to children born to the
             69      mother and father after entry of the decree of divorce may be added to the decree by
             70      modification.
             71          (5) (a) In determining parent-time rights of parents and visitation rights of grandparents
             72      and other members of the immediate family, the court shall consider the best interest of the
             73      child.
             74          (b) Upon a specific finding by the court of the need for peace officer enforcement, the
             75      court may include in an order establishing a parent-time or visitation schedule a provision,
             76      among other things, authorizing any peace officer to enforce a court-ordered parent-time or
             77      visitation schedule entered under this chapter.
             78          (6) If a petition for modification of child custody or parent-time provisions of a court
             79      order is made and denied, the court shall order the petitioner to pay the reasonable attorneys'
             80      fees expended by the prevailing party in that action, if the court determines that the petition
             81      was without merit and not asserted or defended against in good faith.
             82          (7) If a petition alleges noncompliance with a parent-time order by a parent, or a
             83      visitation order by a grandparent or other member of the immediate family where a visitation or
             84      parent-time right has been previously granted by the court, the court may award to the
             85      prevailing party costs, including actual attorney fees and court costs incurred by the prevailing
             86      party because of the other party's failure to provide or exercise court-ordered visitation or
             87      parent-time.
             88          (8) (a) The court shall consider at least the following factors in determining alimony:
             89          (i) the financial condition and needs of the recipient spouse;

             90          (ii) the recipient's earning capacity or ability to produce income;
             91          (iii) the ability of the payor spouse to provide support;
             92          (iv) the length of the marriage;
             93          (v) whether the recipient spouse has custody of minor children requiring support;
             94          (vi) whether a recipient spouse with custody of minor children refrained from
             95      significant employment in order to provide care of the parties' minor children and household
             96      during the marriage, and if so, whether the payor spouse has the ability to provide sufficient
             97      support to allow the recipient spouse to continue to be in the home to supervise and care for the
             98      minor children;
             99          [(vi)] (vii) whether the recipient spouse worked in a business owned or operated by the
             100      payor spouse; and
             101          [(vii)] (viii) whether the recipient spouse directly contributed to any increase in the
             102      payor spouse's skill by paying for education received by the payor spouse or [allowing]
             103      enabling the payor spouse to attend school during the marriage.
             104          (b) An alimony award sufficient to enable a recipient spouse to continue to be in the
             105      home to provide care and supervision to the parties' minor children under Subsection (8)(a)(vi)
             106      does not preclude the recipient spouse from reasonably pursuing education, job training,
             107      acquiring or maintaining professional licenses, or otherwise preparing to be self-supporting.
             108          [(b)] (c) The court may consider the fault of the parties in determining [alimony.]
             109      whether or not to award alimony. An alimony award is not considered punitive if it complies
             110      with this subsection.
             111          (d) "Fault" means that one party committed substantiated acts or engaged in
             112      substantiated behavior during the marriage that unilaterally and substantially compromised the
             113      marriage, or unilaterally and substantially harmed the health, safety, or financial stability of the
             114      other party or their minor children, including:
             115          (i) sexual relations with a person who is not the party's spouse;
             116          (ii) physical abuse of the spouse or minor children;
             117          (iii) long-term addiction to alcohol, drugs, gambling, or pornography; or
             118          (iv) conviction of a felony.
             119          (e) A party may stipulate to an allegation of fault.
             120          (f) The court may, when fault is at issue, close the proceedings and seal the court

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

             152      that the marriage existed unless[, at any time prior to termination of alimony,] the court finds:
             153          (i) the payor spouse was at fault in the divorce; or
             154          (ii) at any time prior to termination of alimony, extenuating circumstances that justify
             155      the payment of alimony for a longer period of time.
             156          (9) Unless a decree of divorce specifically provides otherwise, any order of the court
             157      that a party pay alimony to a former spouse automatically terminates upon the remarriage or
             158      death of that former spouse. However, if the remarriage is annulled and found to be void ab
             159      initio, payment of alimony shall resume if the party paying alimony is made a party to the
             160      action of annulment and [his] the payor party's rights are determined.
             161          (10) Any order of the court that a party pay alimony to a former spouse terminates
             162      upon establishment by the party paying alimony that the former spouse is cohabitating with
             163      another person.

Legislative Review Note
    as of 1-30-12 8:21 AM

Office of Legislative Research and General Counsel

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