Legislature(2001 - 2002)
03/25/2002 01:40 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 196-RIGHT OF ACTION FOR LEGAL SEPARATION
REPRESENTATIVE FRED DYSON, sponsor of HB 196, reminded members
the committee had a hearing on this legislation last year. He
explained that HB 196 adds a new category in the process of
modifying the marriage status. Currently, a couple can annul a
marriage or get a divorce. 17 other states and the District of
Columbia have adopted an interim status, which is a legal
separation. It allows the couple to get a court decision on
separating their legal affairs and establishing custody and child
support payments on either an interim or final basis. He noted
for people on his side of the political-philosophical spectrum,
this issue often arises when a marriage is troubled and the
conduct of one of the members jeopardizes the family estate but
one partner does not believe in divorce. He explained this bill
will provide an interim status in those situations.
REPRESENTATIVE DYSON said, to his understanding, in other states
that have provided for legal separation, one percent of couples
who file for divorce choose this option. Alaska courts see about
3500 divorce actions per year so one might deduce that 35 of
those couples might choose legal separation instead. He said the
answer to the question of whether the courts are already doing
this is yes. Judges have the prerogative of granting a separate
maintenance agreement but if HB 196 is enacted, the courts will
have to consider the option of legal separation. In addition,
passage of HB 196 will make the public more aware of the option.
CHAIRMAN TAYLOR asked what would happen if one partner wants a
legal separation but the other wants a divorce.
REPRESENTATIVE DYSON said, to his understanding, the judge can
answer and rule in favor of either petitioner and have the
parties enter into an interim agreement for property settlement
protection while the divorce is underway. However, nothing
precludes either partner for filing for a divorce.
SENATOR THERRIAULT asked if HB 196 is identical to Senator
Wilken's legislation.
REPRESENTATIVE DYSON said it is.
CHAIRMAN TAYLOR said he consulted with three different attorneys
in the state whose practices consist of a lot of family law
cases. He said one, a gentleman in Fairbanks who also contacted
Senator Wilken, felt this legislation will provide an important
clarification in the law. The other two he spoke with felt this
legislation is unnecessary because sufficient legal basis exists
today for a court to provide all of the same authorizations
provided in HB 196. He said in weighing his decision, he does not
believe this bill does a disservice to the existing law and that
codifying what professionals in the field know exists today will
provide others with the knowledge that another option is
available. He commented that his 18 years in the legislature have
taught him to be cautious about the law of unintended
consequences. He fears, in passing this type of legislation, a
legal separation could be granted and years might go by while
both parties lead totally separate lives. One person might be
living in another state where common law relationships are
recognized, so the estate could become convoluted. He believes
there is some legal clarity with divorce and would feel more
comfortable with the idea of legal separation if there was some
time limitation attached to it but his concern is not serious
enough to stand in the way of the legislation. He then took
public testimony.
MR. DAVE GOLTER, a private practitioner from Wasilla, informed
members he has practiced family law in the Mat-Su Valley for
about 17 years. He stated support for HB 196 because he believes
clarification of the law is necessary for several reasons. First,
there are statutes that authorize a judge to do much of what is
accomplished in HB 196, but those statutory provisions leave
questions about how far a judge can go and on what authority.
Questions arise in the judicial branch as well. He must counsel
his clients that attorneys have not had a lot of experience with
the judges on how they are going to interpret these laws and rule
on these issues. He has found that most of the people he has
discussed this option with are not interested in being a test
case.
MR. GOLTER said his interpretation of existing law is that the
courts have the right to decide issues of custody and support
outside of the context of the divorce. However, he does not know
if he could convince a judge to divide up marital property
outside of the context of divorce and what the ramifications
would be if the judge did so and a divorce was granted later. He
repeated that for those reasons, it would be helpful to have a
reference in the statutes to legal separation. He said he has
received a call from one couple that wants to know the status of
this bill.
CHAIRMAN TAYLOR asked Mr. Golter to comment on his concern that
the bill contains no time limitation for a legal separation.
MR. GOLTER said one thought that came to mind is that he has had
experiences with couples who go about their separate lives but
don't get a divorce until a legal complication arises so he does
not know that it is extremely uncommon for couples to handle
their marital affairs that way.
CHAIRMAN TAYLOR asked how after-born children would be treated
and whether they would become children of the marriage.
MR. GOLTER said he thinks everyone is aware that parents are
sometimes not married and, in his experience, there is not much
difference in the way the custody laws apply to married versus
unmarried parents. The same standards apply.
CHAIRMAN TAYLOR said if a married couple separates and the woman
gives birth to a child who is not of her husband, under the
bastardy laws of the State of Alaska, that child is presumed to
be a child of that marriage. Denial of paternity will require a
lengthy court proceeding. He noted if the mother was on welfare,
state agencies are then involved and could garnish the wages of
the husband for child support purposes.
MR. GOLTER said that is correct and that there is a presumption
but it is a rebuttable presumption. He said he believes paternity
actions are done voluntarily but if not, courts are very quick to
order one and the question is usually resolved right away. He
said he agrees with Chairman Taylor that it could present a
substantial problem for a separated husband but that would be
something he could take into account when deciding to allow a
separation to continue. He noted that if one spouse does not
agree, he or she could move for divorce.
CHAIRMAN TAYLOR replied:
I understand that. I'm just trying to think of examples
of the concerns that I have. In some circumstances it
may very well be that neither party goes on welfare. No
state or federal agency gets involved but additional
child or children are born. They're considered born of
that marriage and, as a consequence, dad now dies
intestate. Who are his children?
MR. GOLTER said in such a circumstance, there would be a
presumption of paternity but it could be rebutted.
CHAIRMAN TAYLOR said it would have to be rebutted after the
father's or mother's death during a probate action to dispute the
division of the intestate estate and the issue of decedent. He
said he understands the religious concerns but he knows of cases
in which people were separated for 20 years and never did
anything until, "the IRS showed up on their doorstep and they
found out that my husband hadn't paid taxes and now I am
bankrupt." He then thanked Mr. Golter for his testimony.
SENATOR COWDERY moved CSHB 196(JUD) from committee with
individual recommendations.
CHAIRMAN TAYLOR announced that with no objection, CSHB 196(JUD)
moved from committee.
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