Legislature(2001 - 2002)

03/25/2002 01:40 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ 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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