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Bills would allow Utah judges to consider fault when awarding alimony

Published: Monday, Feb. 7 2011 1:18 a.m. MST

SALT LAKE CITY — Moms or dads wishing to remain stay-at-home parents after a divorce could be awarded extra alimony, under a bill sponsored by Rep. Stephen Sandstrom, R-Orem.

A judge would be required to consider whether the custodial spouse was a stay-at-home parent during the marriage, HB231 says. If the judge determined the stay-at-home spouse wasn't "at fault" in the divorce, that spouse could potentially be awarded enough alimony to keep him or her from having to support themselves.

The proposal takes a the opposite approach of another bill in the Senate that seeks to wean a divorced spouse off of alimony.

But the tricky part, Sandstrom said of drafting his bill is in defining fault. He's going to attempt to list elements that could contribute to one spouse being the guilty party, such as a "proven addiction," he said, which could include pornography, gambling or a myriad of other vices.

Utah currently has a no-fault divorce policy, meaning a divorce can be granted without proving fault or guilt of either party.

Sandstrom's bill, which he drafted after talking to a constituent who went through a difficult divorce, would also allow divorced parents to be more flexible with visitation time to accommodate religious observances.

If both parents agreed, the non-custodial parent could give some of their court-ordered visitation time to the custodial parent so the custodial parent could take the kids to church or another religious activity, Sandstrom said. The reciprocal time would be given back to the non-custodial parent.

As for how Sandstrom sees his dual-purpose bill being received by the Legislature, "I think there will be a fight."

Sandstrom will be up against another alimony bill that would require recipients of more than $1,000 of monthly for a period of five years or more to establish a plan of self-sufficiency.

Sponsoring Sen. Lyle Hillyard, R-Layton, said he's seen situations in his more than 40 years in family law where one spouse has become wholly dependent on alimony. "The wife should not be so dependent on her husband," he said.

Once their alimony ends, Hillyard said he would hear women tell their judge, "I don't have any money. I don't have any skills. I want the alimony to continue."

Similar to Sandstrom's bill, HB96 would allow a judge to consider fault when determining alimony. But Hillyard has already defined fault as "any action that affects the mental, physical or emotional condition of a party that reduces that party's ability to earn income at that party's full capacity."

Many of the public who testified in the bill's committee hearings called for an expanded definition of fault. But the problem with listing certain examples of fault, such as adultery or addictions, Hillyard said, is that if you have to start listing one "you have to list them all." He also said issues that might contribute to fault, such as adultery, would be hard for the courts to prove.

Some of the bill's opponents want women compensated for the time they spent as stay-at-home moms while their husbands pursued higher education and then worked outside the home. But Hillyard disagrees. "A law degree is not an asset to be considered to be divided," he said.

Stan Rasmussen, director of public affairs for Sutherland Institute, a conservative public policy organization, said judges should consider fault when awarding alimony because "marriage is much more than just a contract."

But Hillyard holds that fault should be considered only as to how it pertains to reducing the receiver's ability to earn a living.

"The courts have always held that alimony is not a punishment," Hillyard said. "It's an economic thing."

Hillyard said it's hard to draw a clean line in determining alimony because every case is different. Other divorce issues, such as child support, are easier to solve because there is a set formula for judges to use, he said. "We've never been able to do that with alimony."

Some of the bill's proposals would give the courts more flexibility. The law currently states that if cohabitation is proved, the alimony ends. "I say the court can modify it," Hillyard said.

The bill has currently being held in the Senate Judiciary, Law Enforcement and Criminal Justice Committee.

e-mail: averzello@desnews.com

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