Representative V. Lowry Snow proposes the following substitute bill:


1     
ALIMONY MODIFICATIONS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Todd D. Weiler

5     
House Sponsor: V. Lowry Snow

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to alimony.
10     Highlighted Provisions:
11          This bill:
12          ▸     defines terms related to alimony;
13          ▸     amends provisions related to alimony;
14          ▸     enacts provisions regarding cohabitation by a current or former spouse; and
15          ▸     makes technical and conforming changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          30-3-5, as last amended by Laws of Utah 2021, Chapter 269
23          30-3-5.4, as last amended by Laws of Utah 2020, Chapter 337
24          78B-12-212, as last amended by Laws of Utah 2020, Chapter 337
25     

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 -- Alimony -- Nonmeritorious petition for modification.
31          (1) As used in this section:
32          (a) "Cohabit" means to live together, or to reside together on a regular basis, in the
33     same residence and in a relationship of a romantic or sexual nature.
34          (b) "Fault" means any of the following wrongful conduct during the marriage that
35     substantially contributed to the breakup of the marriage:
36          (i) engaging in sexual relations with an individual other than the party's spouse;
37          (ii) knowingly and intentionally causing or attempting to cause physical harm to the
38     other party or a child;
39          (iii) knowingly and intentionally causing the other party or a child to reasonably fear
40     life-threatening harm; or
41          (iv) substantially undermining the financial stability of the other party or the child.
42          (c) "Length of the marriage" means, for purposes of alimony, the number of years from
43     the day on which the parties are legally married to the day on which the petition for divorce is
44     filed with the court.
45          (2) When a decree of divorce is rendered, the court may include in the decree of
46     divorce equitable orders relating to the children, property, debts or obligations, and parties.
47          [(2)] (3) The court shall include the following in every decree of divorce:
48          (a) an order assigning responsibility for the payment of reasonable and necessary
49     medical and dental expenses of a dependent child, including responsibility for health insurance
50     out-of-pocket expenses such as co-payments, co-insurance, and deductibles;
51          (b) (i) if coverage is or becomes available at a reasonable cost, an order requiring the
52     purchase and maintenance of appropriate health, hospital, and dental care insurance for a
53     dependent child; and
54          (ii) a designation of which health, hospital, or dental insurance plan is primary and
55     which health, hospital, or dental insurance plan is secondary in accordance with Section
56     30-3-5.4 that will take effect if at any time a dependent child is covered by both parents' health,
57     hospital, or dental insurance plans;
58          (c) in accordance with Section 15-4-6.5:
59          (i) an order specifying which party is responsible for the payment of joint debts,
60     obligations, or liabilities of the parties contracted or incurred during marriage;
61          (ii) an order requiring the parties to notify respective creditors or obligees, regarding
62     the court's division of debts, obligations, or liabilities and regarding the parties' separate,
63     current addresses; and
64          (iii) provisions for the enforcement of these orders;
65          (d) provisions for income withholding in accordance with Title 62A, Chapter 11,
66     Recovery Services; and
67          (e) if either party owns a life insurance policy or an annuity contract, an
68     acknowledgment by the court that the owner:
69          (i) has reviewed and updated, where appropriate, the list of beneficiaries;
70          (ii) has affirmed that those listed as beneficiaries are in fact the intended beneficiaries
71     after the divorce becomes final; and
72          (iii) understands that if no changes are made to the policy or contract, the beneficiaries
73     currently listed will receive any funds paid by the insurance company under the terms of the
74     policy or contract.
75          [(3)] (4) (a) The court may include, in an order determining child support, an order
76     assigning financial responsibility for all or a portion of child care expenses incurred on behalf
77     of a dependent child, necessitated by the employment or training of the custodial parent.
78          (b) If the court determines that the circumstances are appropriate and that the
79     dependent child would be adequately cared for, the court may include an order allowing the
80     noncustodial parent to provide child care for the dependent child, necessitated by the
81     employment or training of the custodial parent.
82          [(4)] (5) The court has continuing jurisdiction to make subsequent changes or new
83     orders for the custody of a child and the child's support, maintenance, health, and dental care,
84     and for distribution of the property and obligations for debts as is reasonable and necessary.
85          [(5)] (6) Child support, custody, visitation, and other matters related to a child born to
86     the parents after entry of the decree of divorce may be added to the decree by modification.
87          [(6)] (7) (a) In determining parent-time rights of parents and visitation rights of
88     grandparents and other members of the immediate family, the court shall consider the best
89     interest of the child.
90          (b) Upon a specific finding by the court of the need for peace officer enforcement, the
91     court may include in an order establishing a parent-time or visitation schedule a provision,
92     among other things, authorizing any peace officer to enforce a court-ordered parent-time or
93     visitation schedule entered under this chapter.
94          [(7)] (8) If a petition for modification of child custody or parent-time provisions of a
95     court order is made and denied, the court shall order the petitioner to pay the reasonable
96     attorney fees expended by the prevailing party in that action, if the court determines that the
97     petition was without merit and not asserted or defended against in good faith.
98          [(8)] (9) If a motion or petition alleges noncompliance with a parent-time order by a
99     parent, or a visitation order by a grandparent or other member of the immediate family where a
100     visitation or parent-time right has been previously granted by the court, the court may award to
101     the prevailing party:
102          (a) actual attorney fees incurred;
103          (b) the costs incurred by the prevailing party because of the other party's failure to
104     provide or exercise court-ordered visitation or parent-time, which may include:
105          (i) court costs;
106          (ii) child care expenses;
107          (iii) transportation expenses actually incurred;
108          (iv) lost wages, if ascertainable; and
109          (v) counseling for a child or parent if ordered or approved by the court;
110          (c) make-up parent time consistent with the best interest of the child; and
111          (d) any other appropriate equitable remedy.
112          [(9)] (10) (a) The court shall consider at least the following factors in determining
113     alimony:
114          (i) the financial condition and needs of the recipient spouse;
115          (ii) the recipient's earning capacity or ability to produce income, including the impact
116     of diminished workplace experience resulting from primarily caring for a child of the payor
117     spouse;
118          (iii) the ability of the payor spouse to provide support;
119          (iv) the length of the marriage;
120          (v) whether the recipient spouse has custody of a minor child requiring support;
121          (vi) whether the recipient spouse worked in a business owned or operated by the payor
122     spouse; and
123          (vii) whether the recipient spouse directly contributed to any increase in the payor
124     spouse's skill by paying for education received by the payor spouse or enabling the payor
125     spouse to attend school during the marriage.
126          (b) The court may consider the fault of the parties in determining whether to award
127     alimony and the terms of the alimony.
128          [(c) "Fault" means any of the following wrongful conduct during the marriage that
129     substantially contributed to the breakup of the marriage relationship:]
130          [(i) engaging in sexual relations with an individual other than the party's spouse;]
131          [(ii) knowingly and intentionally causing or attempting to cause physical harm to the
132     other party or a minor child;]
133          [(iii) knowingly and intentionally causing the other party or a minor child to reasonably
134     fear life-threatening harm; or]
135          [(iv) substantially undermining the financial stability of the other party or the minor
136     child.]
137          [(d)] (c) The court may, when fault is at issue, close the proceedings and seal the court
138     records.
139          [(e)] (d) As a general rule, the court should look to the standard of living, existing at
140     the time of separation, in determining alimony in accordance with Subsection [(9)] (10)(a).
141     However, the court shall consider all relevant facts and equitable principles and may, in the
142     court's discretion, base alimony on the standard of living that existed at the time of trial. In
143     marriages of short duration, when no child has been conceived or born during the marriage, the
144     court may consider the standard of living that existed at the time of the marriage.
145          [(f)] (e) The court may, under appropriate circumstances, attempt to equalize the
146     parties' respective standards of living.
147          [(g)] (f) When a marriage of long duration dissolves on the threshold of a major change
148     in the income of one of the spouses due to the collective efforts of both, that change shall be
149     considered in dividing the marital property and in determining the amount of alimony. If one
150     spouse's earning capacity has been greatly enhanced through the efforts of both spouses during
151     the marriage, the court may make a compensating adjustment in dividing the marital property
152     and awarding alimony.
153          [(h)] (g) In determining alimony when a marriage of short duration dissolves, and no
154     child has been conceived or born during the marriage, the court may consider restoring each
155     party to the condition which existed at the time of the marriage.
156          [(10)] (11) (a) The court has continuing jurisdiction to make substantive changes and
157     new orders regarding alimony based on a substantial material change in circumstances not
158     expressly stated in the divorce decree or in the findings that the court entered at the time of the
159     divorce decree.
160          (b) A party's retirement is a substantial material change in circumstances that is subject
161     to a petition to modify alimony, unless the divorce decree, or the findings that the court entered
162     at the time of the divorce decree, expressly states otherwise.
163          (c) The court may not modify alimony or issue a new order for alimony to address
164     needs of the recipient that did not exist at the time the decree was entered, unless the court
165     finds extenuating circumstances that justify that action.
166          (d) (i) In determining alimony, the income of any subsequent spouse of the payor may
167     not be considered, except as provided in Subsection [(9)] (10) or this Subsection [(10)] (11).
168          (ii) The court may consider the subsequent spouse's financial ability to share living
169     expenses.
170          (iii) The court may consider the income of a subsequent spouse if the court finds that
171     the payor's improper conduct justifies that consideration.
172          [(e) The court may not order alimony for a duration longer than the number of years
173     that the marriage existed unless, at any time before termination of alimony, the court finds
174     extenuating circumstances that justify the payment of alimony for a longer period of time.]
175          (e) (i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony
176     for a period of time longer than the length of the marriage.
177          (ii) If a party is ordered to pay temporary alimony during the pendency of the divorce
178     action, the period of time that the party pays temporary alimony shall be counted towards the
179     period of time for which the party is ordered to pay alimony.
180          (iii) At any time before the termination of alimony, the court may find extenuating
181     circumstances or good cause that justify the payment of alimony for a longer period of time
182     than the length of the marriage.
183          [(11) Unless]
184          (12) (a) Except as provided in Subsection (12)(b), unless a decree of divorce
185     specifically provides otherwise, any order of the court that a party pay alimony to a former
186     spouse automatically terminates upon the remarriage or death of that former spouse.
187     [However, if]
188          (b) If the remarriage of the former spouse is annulled and found to be void ab initio,
189     payment of alimony shall resume if the party paying alimony is made a party to the action of
190     annulment and the payor party's rights are determined.
191          [(12) (a) Subject to Subsection (12) (b), an order of the court that a party pay alimony
192     to a former spouse terminates upon establishment by the party paying alimony that the former
193     spouse, after the order for alimony is issued, cohabits with another individual, even if the
194     former spouse is not cohabiting with another person when the party paying alimony files the
195     motion to terminate alimony.]
196          (13) If a party establishes that a current spouse cohabits with another individual during
197     the pendency of the divorce action, the court:
198          (a) may not order the party to pay temporary alimony to the current spouse; and
199          (b) shall terminate any order that the party pay temporary alimony to the current
200     spouse.
201          (14) (a) Subject to Subsection (14)(b), the court shall terminate an order that a party
202     pay alimony to a former spouse if the party establishes that, after the order for alimony is
203     issued, the former spouse cohabits with another individual even if the former spouse is not
204     cohabiting with the individual when the party paying alimony files the motion to terminate
205     alimony.
206          (b) A party paying alimony to a former spouse may not seek termination of alimony
207     under Subsection [(12)] (14)(a), later than one year from the day on which the party knew or
208     should have known that the former spouse has cohabited with another individual.
209          Section 2. Section 30-3-5.4 is amended to read:
210          30-3-5.4. Designation of primary and secondary health, dental, or hospital
211     insurance coverage.
212          (1) As used in this section, "health, hospital, or dental insurance plan" has the same
213     meaning as "health care insurance" as defined in Section 31A-1-301.
214          (2) (a) A decree of divorce rendered in accordance with Section 30-3-5, an order for
215     medical expenses rendered in accordance with Section 78B-12-212, and an administrative
216     order under Section 62A-11-326 shall, in accordance with Subsection (2)(b)(ii), designate
217     which parent's health, hospital, or dental insurance plan is primary coverage and which parent's
218     health, hospital, or dental insurance plan is secondary coverage for a dependent child.
219          (b) The provisions of the court order required by Subsection (2)(a) shall:
220          (i) take effect if at any time a dependent child is covered by both parents' health,
221     hospital, or dental insurance plans; and
222          (ii) include the following language:
223          "If, at any point in time, a dependent child is covered by the health, hospital, or dental
224     insurance plans of both parents, the health, hospital, or dental insurance plan of (Parent's
225     Name) shall be primary coverage for the dependent child and the health, hospital, or dental
226     insurance plan of (Other Parent's Name) shall be secondary coverage for the dependent child.
227     If a parent remarries and his or her dependent child is not covered by that parent's health,
228     hospital, or dental insurance plan but is covered by a step-parent's plan, the health, hospital, or
229     dental insurance plan of the step-parent shall be treated as if it is the plan of the remarried
230     parent and shall retain the same designation as the primary or secondary plan of the dependent
231     child."
232          (c) A decree of divorce or related court order may not modify the language required by
233     Subsection (2)(b)(ii).
234          (d) Notwithstanding Subsection (2)(c), a court may allocate the payment of medical
235     expenses including co-payments, deductibles, and co-insurance not covered by health insurance
236     between the parents in accordance with Subsections 30-3-5[(2)](3)(a) and 78B-12-212(7).
237          (3) In designating primary coverage pursuant to Subsection (2), a court may take into
238     account:
239          (a) the birth dates of the parents;
240          (b) a requirement in a court order, if any, for one of the parents to maintain health
241     insurance coverage for a dependent child;
242          (c) the parent with physical custody of the dependent child; or
243          (d) any other factor the court considers relevant.
244          Section 3. Section 78B-12-212 is amended to read:
245          78B-12-212. Medical expenses.
246          (1) A child support order issued or modified in this state on or after July 1, 2018, shall
247     require compliance with this section as of the effective date of the child support order unless
248     the court makes specific findings as to good cause to deviate from the requirements of this
249     section.
250          (2) (a) The court shall order that health care coverage for the medical expenses of a
251     minor child be provided by a parent.
252          (b) The court shall order that a parent provide insurance for the medical expenses of a
253     minor child if insurance is available to that parent at a reasonable cost.
254          (c) The court shall, in accordance with Section 30-3-5, designate which health,
255     hospital, or dental insurance plan is primary and which health, hospital, or dental insurance
256     plan is secondary if at any time a dependent child is covered by both parents' health, hospital,
257     or dental insurance plans.
258          (3) In determining which parent shall be ordered to maintain insurance for medical
259     expenses, the court or administrative agency may consider the:
260          (a) reasonableness of the cost;
261          (b) availability of a group insurance policy;
262          (c) coverage of the policy; and
263          (d) preference of the custodial parent.
264          (4) The order shall require each parent to share equally the out-of-pocket costs of the
265     premium actually paid by a parent for the child's portion of insurance unless the court finds
266     good cause to order otherwise.
267          (5) The parent who provides the insurance coverage may receive credit against the base
268     child support award or recover the other parent's share of the child's portion of the premium. If
269     the parent does not have insurance but another member of the parent's household provides
270     insurance coverage for the child, the parent may receive credit against the base child support
271     award or recover the other parent's share of the child's portion of the premium.
272          (6) The child's portion of the premium is a per capita share of the premium actually
273     paid. The premium expense for a child shall be calculated by dividing the premium amount by
274     the number of persons covered under the policy and multiplying the result by the number of
275     children in the instant case.
276          (7) The order shall, in accordance with Subsection 30-3-5[(2)](3)(a), include a cash
277     medical support provision that requires each parent to equally share all reasonable and
278     necessary uninsured and unreimbursed medical and dental expenses incurred for a dependent
279     child, including deductibles and copayments unless the court finds good cause to order
280     otherwise.
281          (8) The parent ordered to maintain insurance shall provide verification of coverage to
282     the other parent, or to the Office of Recovery Services under Title IV of the Social Security
283     Act, 42 U.S.C. Sec. 601 et seq., upon initial enrollment of the dependent child, and after initial
284     enrollment on or before January 2 of each calendar year. The parent shall notify the other
285     parent, or the Office of Recovery Services under Title IV of the Social Security Act, 42 U.S.C.
286     Sec. 601 et seq., of any change of insurance carrier, premium, or benefits within 30 calendar
287     days of the date the parent first knew or should have known of the change.
288          (9) A parent who incurs medical expenses shall provide written verification of the cost
289     and payment of medical expenses to the other parent within 30 days of payment.
290          (10) In addition to any other sanctions provided by the court, a parent incurring
291     medical expenses may be denied the right to receive credit for the expenses or to recover the
292     other parent's share of the expenses if that parent fails to comply with Subsections (8) and (9).