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S.B. 11





Chief Sponsor: Lyle W. Hillyard

House Sponsor: ____________

             7      LONG TITLE
             8      Committee Note:
             9          The Judiciary Interim Committee recommended this bill.
             10      General Description:
             11          This bill expands the circumstances under which a court may order alimony.
             12      Highlighted Provisions:
             13          This bill:
             14          .    allows a court to consider fault when awarding alimony; and
             15          .    defines fault to include acts that intentionally and knowingly harm or cause
             16      substantial harm, physically or financially, to a spouse or the children of the
             17      marriage.
             18      Money Appropriated in this Bill:
             19          None
             20      Other Special Clauses:
             21          None
             22      Utah Code Sections Affected:
             23      AMENDS:
             24          30-3-5, as last amended by Laws of Utah 2010, Chapter 285
             26      Be it enacted by the Legislature of the state of Utah:
             27          Section 1. Section 30-3-5 is amended to read:

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

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

             90      spouse; and
             91          (vii) whether the recipient spouse directly contributed to any increase in the payor
             92      spouse's skill by paying for education received by the payor spouse or [allowing] enabling the
             93      payor spouse to attend school during the marriage.
             94          (b) The court may consider the fault of the parties in determining whether to award
             95      alimony and the terms thereof.
             96          (c) "Fault" means wrongful conduct during the marriage that substantially contributed
             97      to the breakup of the marriage relationship, including:
             98          (i) engaging in sexual relations with a person other than the party's spouse;
             99          (ii) knowingly and intentionally causing or attempting to cause physical harm to the
             100      other party or minor children;
             101          (iii) knowingly and intentionally causing the other party or minor children to
             102      reasonably fear life-threatening harm; or
             103          (iv) substantially undermining the financial stability of the other party or the minor
             104      children.
             105          (d) The court may, when fault is at issue, close the proceedings and seal the court
             106      records.
             107          [(c)] (e) As a general rule, the court should look to the standard of living, existing at
             108      the time of separation, in determining alimony in accordance with Subsection (8)(a). However,
             109      the court shall consider all relevant facts and equitable principles and may, in its discretion,
             110      base alimony on the standard of living that existed at the time of trial. In marriages of short
             111      duration, when no children have been conceived or born during the marriage, the court may
             112      consider the standard of living that existed at the time of the marriage.
             113          [(d)] (f) The court may, under appropriate circumstances, attempt to equalize the
             114      parties' respective standards of living.
             115          [(e)] (g) When a marriage of long duration dissolves on the threshold of a major
             116      change in the income of one of the spouses due to the collective efforts of both, that change
             117      shall be considered in dividing the marital property and in determining the amount of alimony.
             118      If one spouse's earning capacity has been greatly enhanced through the efforts of both spouses
             119      during the marriage, the court may make a compensating adjustment in dividing the marital
             120      property and awarding alimony.

             121          [(f)] (h) In determining alimony when a marriage of short duration dissolves, and no
             122      children have been conceived or born during the marriage, the court may consider restoring
             123      each party to the condition which existed at the time of the marriage.
             124          [(g)] (i) (i) The court has continuing jurisdiction to make substantive changes and new
             125      orders regarding alimony based on a substantial material change in circumstances not
             126      foreseeable at the time of the divorce.
             127          (ii) The court may not modify alimony or issue a new order for alimony to address
             128      needs of the recipient that did not exist at the time the decree was entered, unless the court
             129      finds extenuating circumstances that justify that action.
             130          (iii) In determining alimony, the income of any subsequent spouse of the payor may not
             131      be considered, except as provided in this Subsection (8).
             132          (A) The court may consider the subsequent spouse's financial ability to share living
             133      expenses.
             134          (B) The court may consider the income of a subsequent spouse if the court finds that
             135      the payor's improper conduct justifies that consideration.
             136          [(h)] (j) Alimony may not be ordered for a duration longer than the number of years
             137      that the marriage existed unless, at any time prior to termination of alimony, the court finds
             138      extenuating circumstances that justify the payment of alimony for a longer period of time.
             139          (9) Unless a decree of divorce specifically provides otherwise, any order of the court
             140      that a party pay alimony to a former spouse automatically terminates upon the remarriage or
             141      death of that former spouse. However, if the remarriage is annulled and found to be void ab
             142      initio, payment of alimony shall resume if the party paying alimony is made a party to the
             143      action of annulment and [his] the payor party's rights are determined.
             144          (10) Any order of the court that a party pay alimony to a former spouse terminates
             145      upon establishment by the party paying alimony that the former spouse is cohabitating with
             146      another person.

Legislative Review Note
    as of 10-22-12 7:09 AM

Office of Legislative Research and General Counsel

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