Should courts put a price on the impacts of adultery, abuse in ordering alimony?

SALT LAKE CITY — A family lawyer urged state lawmakers to carefully consider the ramifications of proposed changes to divorce law that would allow judges to consider "fault" when deciding whether to award alimony.

Determining fault for committing adultery or the abuse of children or the spouse would raise the level of contention in already difficult legal proceedings, said Stewart Ralphs, executive director of Legal Aid Society of Salt Lake City.

"Family lawyers don't want their practices turning into mud-slinging fests," Ralphs told the Utah Legislature's Judiciary Interim Committee on Wednesday.

The comments came in response to a proposal by Rep. Fred Cox, R-West Valley City, who is seeking to include fault as part of divorce proceedings in relation to alimony awards.

Some lawmakers, who argued that laws should be written to make it more difficult to obtain divorces, said courts award judgments for other types of wrongs, such as injuries sustained in accidents that render a person unable to work.

But Ralphs said he believes that it would be more difficult to settle divorce cases if fault figured into alimony awards.

"How do you monetize infidelity?" he said.

The panel took no action, and Cox said he would take into consideration the views of the committee and the public as he further refines his proposal. 

Sen. Mark Madsen, R-Lehi, said it is unfair for one spouse to act in a manner that compromises the marriage contract and yet not be penalized for that conduct.

"It doesn't seem right for the breaching party to collect damages from the harmed party," he said.

Cox said the Legislature needs to address the issue in light of a recent Utah Court of Appeals opinion in the case of Mark v. Mark that examines the issue of alimony. It notes that the Utah Legislature has not defined fault in the statute.

"Until the Legislature clearly defines fault in the statute, it is inappropriate to attach any consequence to the consideration of fault when making an alimony award," the judges wrote.

Given that opinion, Cox said there is some urgency on the part of the Legislature "to define fault if we leave it in the statute.

"I think we need to resolve it, not just keep kicking the can down the road." 

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