Legislature(2001 - 2002)

04/19/2001 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 196 - RIGHT OF ACTION FOR LEGAL SEPARATION                                                                                 
[Discussion  of HB  196 also  pertains to  SB 126,  the companion                                                               
Number 2456                                                                                                                     
CHAIR ROKEBERG  announced that the  next order of  business would                                                               
be HOUSE  BILL NO. 196,  "An Act  establishing a right  of action                                                               
for a legal separation; and  amending Rule 42(a), Alaska Rules of                                                               
Civil Procedure."                                                                                                               
Number 2433                                                                                                                     
REPRESENTATIVE  FRED DYSON,  Alaska  State Legislature,  sponsor,                                                               
remarked that the  proposed committee substitute for HB  196 is a                                                               
companion bill to SB 126.                                                                                                       
Number 2389                                                                                                                     
REPRESENTATIVE  JAMES  made  a   motion  to  adopt  the  proposed                                                               
committee  substitute  (CS)  for  HB  196,  version  22-LS0718\C,                                                               
Lauterbach, 4/4/01, as  a work draft.  There  being no objection,                                                               
Version C was before the committee.                                                                                             
REPRESENTATIVE  DYSON  noted  that  about 17  other  states  have                                                               
statutory   provisions  for   legal  separation,   which  is   an                                                               
intermediate  step for  couples that  are having  difficulties in                                                               
their marriage but  either don't want to get a  divorce or "don't                                                               
believe  in  divorce."    Legal   separation  allows  couples  to                                                               
separate their financial  affairs and take care  of child custody                                                               
issues and property settlements,  while working on reconciliation                                                               
issues or  other personal  issues individually.   He  opined that                                                               
everyone knows  someone who "has  been in a messy  situation, and                                                               
... one partner or the other  is acting in quite an irresponsible                                                               
way  and  getting  the  relatively  innocent  party  in  lots  of                                                               
financial  problems -  running up  debts, squandering  the family                                                               
estate   and  resources,   and/or   incurring  some   significant                                                               
liabilities."  Version C allows  people to separate their affairs                                                               
before a  judge, and  gives at  least a  degree of  protection to                                                               
both parties  while "they  do whatever else  they're going  to do                                                               
with the relationship."                                                                                                         
Number 2309                                                                                                                     
KARA  MORIARTY,  Staff  to  Senator  Gary  Wilken,  Alaska  State                                                               
Legislature,  explained that  the concept  of a  legal separation                                                               
came about because  Senator Wilken [the sponsor of SB  126] had a                                                               
constituent  who   was  faced  with  an   uncomfortable  marriage                                                               
situation and who wanted to  secure the family's assets and child                                                               
custody provisions  without going through  a divorce.   She added                                                               
that Senator Wilken envisions that  this legislation will provide                                                               
a "time-out period or a  cooling-off period" during which couples                                                               
can take care of their  finances, their child custody issues, and                                                               
all of the  other issues that are  dealt with in a  divorce.  She                                                               
noted  that Senator  Wilken has  been  working to  get the  legal                                                               
separation  process to  statutorily mirror  the divorce  process,                                                               
while still  allowing the  couple to retain  the legal  status of                                                               
"married," which  may be  desired by  the parties  for financial,                                                               
social, or religious reasons.                                                                                                   
REPRESENTATIVE DYSON  recounted that he'd watched  his parents go                                                               
through a  "huge mess" that  this legislation would  have helped.                                                               
He  also  mentioned  that  his   wife  is  a  marriage-and-family                                                               
counselor who  has mentioned to  him that because  many religious                                                               
traditions discourage divorce,  it would be good if  there were a                                                               
legal way for couples to separate their affairs.                                                                                
REPRESENTATIVE  JAMES noted  that  according  to her  experience,                                                               
joined finances  are sometimes  what keeps  people together  if a                                                               
legal  separation is  not  available.   Many  times, when  people                                                               
liquidate, they have nothing left, but  if the assets can be kept                                                               
whole, there  is a real  financial advantage, even if  the couple                                                               
no longer lives together.                                                                                                       
REPRESENTATIVE DYSON remarked that  some Alaskan courts have been                                                               
"doing this;"  the judges have kind  of worked "through it."   He                                                               
added that  Version C  simply puts the  procedure in  statute and                                                               
clarifies some associated issues.                                                                                               
MS.  MORIARTY explained  that  on December  1,  2000, the  Alaska                                                               
Supreme Court issued  an opinion on legal separation  in the case                                                               
of Glasen v.  Glasen.  She said that this  case involved a couple                                                             
who had  gotten a legal  separation in 1991, had  reconciled, and                                                               
then had gotten  a divorce in 1997.  The  husband took issue with                                                               
the  fact  that  the  provisions of  the  legal  separation  were                                                               
different from  the provisions  of the  divorce; he  appealed the                                                               
decision all the way to  the supreme court, which determined that                                                               
although legal separations  are not defined in  statute, there is                                                               
reference to legal separation in  current divorce statutes.  Thus                                                               
the  Alaska  Supreme Court  ruled  that  courts may  grant  legal                                                               
separations, but  it also ruled  that future courts did  not have                                                               
to abide by the provisions  of legal separations or recognize the                                                               
existence  of legal  separations.   She opined  that this  ruling                                                               
justifies the  creation of legislation defining  legal separation                                                               
in statute.                                                                                                                     
REPRESENTATIVE BERKOWITZ  asked whether Version C  was modeled on                                                               
another state's statute.                                                                                                        
MS. MORIARTY replied that the  bill drafter, as much as possible,                                                               
simply mirrored  Alaska's divorce  statute, and  had incorporated                                                               
some language similar to statutes from a couple of other states.                                                                
Number 2050                                                                                                                     
REPRESENTATIVE  BERKOWITZ noted  that family  law issues  usually                                                               
[are distilled] down  to property rights.  He said  he was trying                                                               
to imagine a  circumstance in which someone gets,  for example, a                                                               
legal  separation and  is accruing  ongoing benefits.   Normally,                                                               
those  ongoing benefits  would be  shared as  part of  a property                                                               
settlement.   The  individual also  could take  up with  somebody                                                               
else at the same time.   How, he asked, does the legal separation                                                               
factor all that in?                                                                                                             
REPRESENTATIVE DYSON, in response,  said he assumes provision can                                                               
be made for that in the case  put before the judge by saying, "If                                                               
there's  alienation of  affection because  of X,  Y, and  Z, then                                                               
this hammer falls."   He agreed that most of this  has to do with                                                               
property,  and said  it  particularly has  to  do with  incurring                                                               
debts.   He added that everyone  is familiar with the  notices in                                                               
the  paper  that   say,  for  example,  "I'm  not   going  to  be                                                               
responsible for any debts except my  own."  Without the option of                                                               
legal separation, in a common-property-law  state such as Alaska,                                                               
"you're  on  the  hook,"  and  most people  know,  he  added,  of                                                               
somebody that's married to a "jerk".                                                                                            
REPRESENTATIVE  BERKOWITZ  said  he   is  thinking  in  terms  of                                                               
pensions, for  example; during the  course of a separation  - and                                                               
forgetting about a  third party - would  the [recipient] continue                                                               
to accrue pension benefits, he  asked, or would that be something                                                               
"hammered out" at the separation hearing?                                                                                       
REPRESENTATIVE DYSON opined that  such details would be addressed                                                               
in the  separation agreement,  for example,  if they  held common                                                               
REPRESENTATIVE BERKOWITZ surmised, then,  "It's like a divorce in                                                               
everything but name only."                                                                                                      
REPRESENTATIVE DYSON agreed.                                                                                                    
CHAIR  ROKEBERG  pointed  out  that  many  benefit  packages  are                                                               
dependent on marital  status, such as health insurance.   He then                                                               
asked how  property divisions would  be handled in  situations of                                                               
legal separation with a subsequent divorce.                                                                                     
Number 1855                                                                                                                     
MS. MORIARTY referred to page  2, lines 14-19, and explained that                                                               
because the divisions  of property and debt are  usually the most                                                               
volatile issues, this  language stipulates that the  court has to                                                               
decide if  the division  of property  and debt  is an  interim or                                                               
final  order.    For  example,  if the  court  decides  that  the                                                               
division is an  interim order, the court can  also stipulate that                                                               
five  years later  it will  reexamine the  situation again.   She                                                               
remarked that this language provides flexibility to the courts.                                                                 
REPRESENTATIVE  DYSON, in  response to  questions, noted  that an                                                               
interim  order  is  interim until  it's  changed;  somebody  (the                                                               
court) has  to referee  the situation.   [A legal  separation] is                                                               
supposed to be  fair; both sides have access to  counsel, and the                                                               
judge gets to  hear both sides of  the case.  With  regard to the                                                               
issues  of  cost  to  the   state  and  ongoing  legal  arguments                                                               
surrounding the  division, he said  that unless the case  goes on                                                               
to divorce,  "it's only going to  happen once," and that  it will                                                               
probable take less  time than a divorce because  it's generally a                                                               
mutual agreement.                                                                                                               
CHAIR ROKEBERG  noted that Representative Dyson's  testimony that                                                               
it's  only  going  to  happen  once  contradicts  Ms.  Moriarty's                                                               
testimony that  the court  has the  flexibility to  reexamine the                                                               
situation a few  years later.  He said that  while he appreciated                                                               
the need for  a distinction between an interim order  and a final                                                               
order,  if  the  division  of  property  and  debts  in  a  legal                                                               
separation is an interim order,  how many times would parties get                                                               
to keep coming back to court?                                                                                                   
REPRESENTATIVE JAMES, on the issue  of whether there is a benefit                                                               
to  getting a  legal separation,  said that  she thinks  there is                                                               
one,  particularly  if,  for example,  people  have  bought  some                                                               
property and  don't have much equity  in it, but have  the use of                                                               
it  as  long  as  the  payments  are  made;  if  it  were  to  be                                                               
liquidated, there would  be nothing, but if they can  keep it for                                                               
a  while, in  time  there  would be  something  to  divide.   She                                                               
acknowledged  that  in this  example,  it  is possible  that  the                                                               
couple  could keep  the property  even after  a divorce,  but not                                                               
very easily.   Generally the property  has to go to  one party or                                                               
the other,  and then there is  nothing left for the  other party.                                                               
She  noted that  the same  resolution could  occur when  a couple                                                               
owns a  business together;  in a legal  separation, if  one party                                                               
can't buy the other one out due  to a lack of funds, the business                                                               
can remain  jointly owned.  Then,  even if only one  person stays                                                               
to operate it,  both parties retain an interest  in the business.                                                               
By contrast, in a divorce only one party can keep an interest.                                                                  
Number 1670                                                                                                                     
REPRESENTATIVE  DYSON recounted  that he  has seen  situations in                                                               
which one spouse has problems  with drugs and/or alcohol, and the                                                               
other spouse does not want a  divorce but does want to secure the                                                               
family's assets while still maintaining  the hope that the spouse                                                               
with the behavior problem will straighten out.                                                                                  
CHAIR  ROKEBERG  brought  up  the issue  of  "forum  shopping"  -                                                               
whereby if a party is unhappy  with a final decree of separation,                                                               
he/she attempts to re-litigate property  issues in another state.                                                               
He asked  whether Representative  Dyson thinks  this needs  to be                                                               
REPRESENTATIVE  DYSON replied  that [Legislative  Legal Services]                                                               
informed him that this issue is "covered."                                                                                      
MS. MORIARTY, in response to  the question of whether someone who                                                               
is legally separated can remarry,  explained that the Division of                                                               
Vital  Statistics has  confirmed  that a  person  who is  legally                                                               
separated is  not allowed  to remarry until  he/she goes  back to                                                               
the  court and  finalizes divorce  proceedings.   She noted  that                                                               
this restriction has  prompted the inclusion of  Section 5, which                                                               
mandates  that the  court  shall  keep track  of  how many  legal                                                               
separations are done; after three  years, the state registrar may                                                               
make   recommendations  regarding   the  organization   of  these                                                               
statistics.   She then went  on to  explain that the  Division of                                                               
Vital  Statistics  has  looked at  other  states  for  comparison                                                               
purposes and  relayed that New Hampshire  has approximately 6,000                                                               
divorces  a year  (Alaska has  3,500-4,000 divorces)  and had  12                                                               
legal separations  last year -  less than  1 percent of  what may                                                               
have been a  divorce was instead a legal separation.   Hence, she                                                               
opined, statutory  legal separation will probably  only benefit a                                                               
small  percentage  of Alaskans.    Therefore,  the costs  to  the                                                               
courts should be minimal; she  added that the Alaska Court System                                                               
did not raise cost as a concern.                                                                                                
Number 1461                                                                                                                     
REPRESENTATIVE JAMES said that according  to her understanding of                                                               
legal separation,  it would be an  option for two people  who are                                                               
fairly  compatible  but do  not  want  to  live together  or  get                                                               
remarried.   She offered that  if the  situation later came  to a                                                               
divorce, it  would not be  as expensive,  since by that  time the                                                               
controversial issues  of property rights would  have already been                                                               
CHAIR ROKEBERG called an at-ease from 2:18 p.m. to 2:19 p.m.                                                                    
CHAIR ROKEBERG, after reviewing  the Alaska Supreme Court opinion                                                               
regarding the  Glasen v. Glasen  case, remarked, "The  courts are                                                             
now making law again, here - another example of it."                                                                            
REPRESENTATIVE DYSON  said that he  agreed, and that  he actively                                                               
supports  members of  the  committee who  take  exception to  the                                                               
court's doing that.                                                                                                             
CHAIR  ROKEBERG,  returning to  the  issue  of legal  separation,                                                               
asked whether, at one time, it was more commonly available.                                                                     
REPRESENTATIVE DYSON  said he does  not believe it has  ever been                                                               
enforced in  Alaska; he added  that it is his  understanding that                                                               
"more states are moving this direction."                                                                                        
MS.  MORIARTY  noted  that  she   did  not  have  any  nationwide                                                               
historical data  regarding the  availability of  legal separation                                                               
to  offer   the  committee.     She   added  that   according  to                                                               
[Legislative  Legal  Services]  people have  tried  to  institute                                                               
legal  separation  in the  past,  but  there just  wasn't  enough                                                               
momentum to "put it on the books."                                                                                              
Number 1197                                                                                                                     
REPRESENTATIVE JAMES  made a motion  to adopt Amendment  1, which                                                               
     Page 2, line 9:                                                                                                            
          Delete "shall"                                                                                                        
          Insert "may"                                                                                                          
Number 1190                                                                                                                     
CHAIR ROKEBERG objected for the purpose of discussion.                                                                          
MS. MORIARTY  explained that there  was concern that  the current                                                               
language in  Version C would  prohibit the courts from  issuing a                                                               
divorce instead  of a  legal separation;  by changing  "shall" to                                                               
"may" the courts retain flexibility.                                                                                            
CHAIR ROKEBERG surmised  that parties have to be  in agreement if                                                               
they are going to enter into a legal separation agreement.                                                                      
REPRESENTATIVE DYSON remarked that it  may not always be the case                                                               
that the parties  agree to a legal separation; one  spouse may go                                                               
into  court seeking  a  legal separation,  and  the other  spouse                                                               
would then  have to  make the case  [against going]  forward with                                                               
the separation.   He opined  that the  court could order  a legal                                                               
CHAIR ROKEBERG sought confirmation  that a legal separation could                                                               
only be entered into on a voluntary basis.                                                                                      
MS. MORIARTY,  concurring with Representative Dyson,  pointed out                                                               
that Section  1 of Version  C says that a  husband or a  wife may                                                               
separately or  jointly file a  complaint for a  legal separation.                                                               
She agreed it  could be, just as  Representative Dyson suggested,                                                               
a court-ordered legal separation.                                                                                               
CHAIR  ROKEBERG surmised,  then,  that he  could  file for  legal                                                               
separation instead  of divorce simply  so that he  could maintain                                                               
access to health benefits from  his wife's health insurance plan,                                                               
regardless of whether his wife agreed.                                                                                          
MS MORIARTY noted that  it would then be up to  his wife to argue                                                               
before  the courts  against  the legal  separation  [or file  for                                                               
CHAIR  ROKEBERG  surmised  that   legal  separation  could  be  a                                                               
powerful  tool if  a  spouse wished  to use  it  to manage  joint                                                               
assets to  his/her own benefit.   He  mentioned that he  did have                                                               
some concerns on this point but  did not wish to delay passage of                                                               
the legislation.                                                                                                                
Number 1018                                                                                                                     
CHAIR ROKEBERG withdrew  his objection to Amendment  1, and asked                                                               
whether there  were any  further objections.   There  being none,                                                               
Amendment 1 was adopted.                                                                                                        
REPRESENTATIVE COGHILL opined  that anybody who is  going to file                                                               
for a legal separation still  has the intention of protecting the                                                               
relationship,  and is  merely seeking  protection of  the assets,                                                               
particularly when  there are children involved;  legal separation                                                               
could "buy time" to remedy family issues.                                                                                       
CHAIR ROKEBERG  asked whether there is  "a quick way to  pull the                                                               
plug on this thing if there's a reconciliation."                                                                                
REPRESENTATIVE  DYSON posited  that  the petitioner  could get  a                                                               
court date to ask the judge to vacate the agreement.                                                                            
MS. MORIARTY concurred that the  petitioner would have to go back                                                               
to  court  to do  that;  there  are  not, however,  any  specific                                                               
provisions  for vacating  the legal-separation  agreement in  the                                                               
legislation.   She added  that the drafter  had assured  her that                                                               
this  issue did  not need  to  be specified  in legislation;  the                                                               
petitioners simply go  back to court for a new  decision.  On the                                                               
issue  of why  the Alaska  Court System  submitted a  zero fiscal                                                               
note, she relayed that Mr.  Wooliver said that simply by creating                                                               
a three-digit code,  it will be easy, with  the current database,                                                               
to track the legal separations for reporting purposes.                                                                          
REPRESENTATIVE  MEYER remarked  that there  probably wouldn't  be                                                               
that many legal separations filed.                                                                                              
Number 0776                                                                                                                     
REPRESENTATIVE  MEYER  moved  to   report  HB  196,  version  22-                                                               
LS0718\C, Lauterbach,  4/4/01, as amended, out  of committee with                                                               
individual  recommendations and  the  accompanying fiscal  notes.                                                               
There being  no objection,  CSHB 196(JUD)  was reported  from the                                                               
House Judiciary Standing Committee.                                                                                             

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