End of Week 1
Here is the status update on those bills we have been watching:
SB 11 (Sponsor – Hillyard): Attempts to define “fault” for purposes of determining alimony. http://1.usa.gov/Vsvfoh . This is one that we will watch closely given that the Legislature has attempted and failed to fix the vagueness in the alimony statute as ruled in Mark v. Mark, 2009 UT App 374. http://bit.ly/113AwPX.
Status: Senate Judiciary Jan 29 motion to recommend failed 3-4-0
Pro Argument: Attempts to reinstate fault into the factors of alimony after Mark v. Mark, 2009 UT App 374. http://bit.ly/113AwPX. All factors relating to the parties’ financial condition should be examined, including non-financial matters like abuse, neglect, etc.
Con Argument: The definition of “fault” isn’t really fleshed out well and there is no substantive difference between the existing law and case law and this proposed bill. Also may result in abuse by judges who impose their own religious or biases into the case.
Also, what is the result if the Court does find fault? Double alimony? If the need for alimony is only $500 but the Court finds fault, does that mean an award of $2,000 is appropriate? What if the other party is also at “fault”, do the parties’ fault negate each other? How much more egregiousness does the one party’s actions have to be? Does adultery justify a bigger award of alimony, what about addiction, etc.? How does a court quantify the damage to a marriage as a result of infidelity or other “economic harms”?
This statute is likely to encourage litigation and only perpetuates the litigious and highly conflicted nature of divorce actions. Alimony should not be a vehicle for the Court to punish bad acts within a marriage relationship.
SB 18 (Sponsor – Robles): Seeks to lower the age from 16 to 14 for children to express their opinion about custody. http://1.usa.gov/WbM7y7
Status: Senate Judiciary Jan 29 held (vote to move to next agenda item 4-2).
Pro: By the age of 14, children generally have strong opinions about their living situations and tend to “vote with their feet” anyway. Children’s thoughts and opinions should always be taken into account in deciding where they should live.
Con: Little difference between 14 and 16, at either age, kids may not make a decision based upon factors that may not be in his/her best interest (e.g. which parent is going to have fewer rules, more lenient curfew, etc.). On the other hand, children younger than 14 should get to have a say as well and 14 is an arbitrary cut off.
SB 49 (Sponsor – Harper): Seeks to push back the effective date of much criticized law repealing appointment of guardian ad litem one year until July 2014. Makes additional changes to Child Welfare laws including exempting parents on disability with children in State’s custody from support requirements, allows a parent to name two friends as potential emergency placements if children are removed, prohibits court from ordering drug testing beyond a parent’s substance abuse treatment program, allows children to be placed with parent’s first cousin, allows a parents whose rights have been terminated to petition for guardianship in limited circumstances. http://1.usa.gov/WKa6BV
HB 50 (Sponsor – Seelig): Provides for the issuance, modification, and enforcement of protective orders between parties who are, or who have been, in a dating relationship and a party commits abuse or dating violence against the other party. http://1.usa.gov/VylrZX.
Status: First Reading (Introduced)
Pros: People in a dating relationship now have to show multiple incidents of domestic violence or abuse to obtain a stalking injunction and have no recourse through a protective order unless they live together. The restriction provides protection regarding workplace and school settings so that a respondent is not precluded from those locations – just precluded from perpetration violence on a victim there. The protective order expires within 180 days.
Cons: It is already far too easy for vindictive cohabitants to get a protective order on false pretenses, and extending similar protections to people in a “dating” relationship will likely lead to continued abuse, additional strain on judiciary resources, and with criminal repercussions if its violated can have far reaching impact for a respondent. It may be difficult for a respondent to disprove a “dating” relationship. The civil stalking injunction provides adequate protection with a requirement of two unwanted contacts.
HB 80 (Sponsor – Anderson): Seeks to allow a creditor to collect from either a husband or wife or both for debts including expenses of the family members for reasonable and necessary medical and dental expenses and other necessities, including education of minor children as well as other collection costs. http://1.usa.gov/YAlqp4
Status: 1/31/13 House Comm – Not Considered
Pro: It helps creditors? Better defines which debts are chargeable to both spouses.
Con: The current law is adequate to cover expenses that should be shared. No definition of what comprises “reasonable and necessary”. One spouse should not be the automatic guarantor of another spouse’s debts. What about the spouse who has no idea the other spouse is incurring huge amounts of debt? Shouldn’t a spouse’s individual dental and medical expenses be their own responsibility? In many cases, divorce cases can take years to finalize and if a couple splits, files for divorce, and one of them goes on a spending spree, the other could arguable be liable for the debts incurred between the date of separation and the finalization of the divorce. Unfortunately, it is not unheard of for vindictive spouses to go on a spending spree simply to rack up joint debt and force the other spouse into bankruptcy. This bill would just exacerbate this problem.
Up & Coming
Bills that have not been introduced but that are in the works:
Parent-time Amendments (Sponsor – Peterson, V.) Creates an optional increased parent-time schedule for school age children that would equate to 145 overnights when the parties agree or when non-custodial parent can demonstrate that the parent has been actively involved in child’s life, can communicate effectively regarding the child, has ability to facilitate increased parent-time, and that it is in the best interest of the child.
Divorce Orientation Course Timing (Sponsor – Nielsen, J.)