Legislature(2001 - 2002)

03/15/2001 03:35 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
            SB 126-RIGHT OF ACTION FOR LEGAL SEPARATION                                                                     
SENATOR WILKEN,  prime sponsor, said that during a  1998 constituent                                                            
meeting  in Ester,  a woman  approached him  with the  issue of  her                                                            
failing marriage. SB 126,  which deals with legal separation, is the                                                            
outcome of that  encounter. In existing law, options  for a troubled                                                            
marriage are:  live with it, get an  annulment or get a divorce.  SB
126 introduces legal separation  with certain legal prerogatives and                                                            
protections as another option.                                                                                                  
SENATOR WILKEN read the following for the record.                                                                               
     Senate  Bill 126 establishes  a right of action for  legal                                                                 
     separation.   Currently,  Alaskan  couples  that  develop                                                                  
     incompatibility issues that  they cannot resolve have only                                                                 
     the option  of either a divorce  or an annulment. A  legal                                                                 
     separation  would provide a third  avenue for Alaskans.  A                                                                 
     legal separation is similar  to a divorce in that it would                                                                 
     provide provisions for child  custody and support, spousal                                                                 
     support,   and  property   division.   However,  a   legal                                                                 
     separation allows couples  to retain their legal status as                                                                 
     married for financial, social or religious reasons.                                                                        
     Seventeen  other states and the District of Columbia  have                                                                 
     some  type of legal  separation law.  This bill gives  the                                                                 
     State of Alaska  the authority to issue legal  separations                                                                 
     and  defines the parameters.  Although  a small number  of                                                                 
     legal separations are currently  being issued in the State                                                                 
     of  Alaska, there is  no statute that  specifically  gives                                                                 
     the court the authorization  to do so. The only references                                                                 
     to legal  separations are found  in statutes dealing  with                                                                 
     child custody and support.                                                                                                 
     While  the need to  make legal separations  an option  for                                                                 
     couples  originated from  a constituent,  there are  other                                                                 
     instances  in the state for which  clarification of  legal                                                                 
     separations  is needed.  On December  1, 2000, the Alaska                                                                  
     Supreme  Court issued  a decision on  the cases of Glasen                                                                  
     vs. Glasen  [Supreme Court No. S-8943; Opinion  No. 5337].                                                                 
     This was  a case in which the  couple did receive a  legal                                                                 
     separation in 1991, reconciled  and then divorced in 1997.                                                                 
     The issue  was over the continued  viability of the  terms                                                                 
     of  the legal separation  granted in  1991. The appellant                                                                  
     wanted  those  terms  to be  incorporated  into  his  1997                                                                 
     The decision  issued by the Supreme Court agreed  with the                                                                 
     superior  court  saying that  the court  did  not have  to                                                                 
     include  the provisions set in  the 1991 legal separation                                                                  
     into the later  divorce decree, as there is not  a statute                                                                 
     directly   authorizing  any  court  to  issue  separation                                                                  
     degrees.  The  court  did  not  attempt  to  define  legal                                                                 
     separations, nor did it  decide whether courts could issue                                                                 
     legal separations.                                                                                                         
     Senate Bill 26 responds  to the recognition by the Supreme                                                                 
     Court for clarification  in Alaska law regarding the legal                                                                 
     separations.  The process defined  in Senate Bill 126  for                                                                 
     legal separation  parallels the process for a  divorce and                                                                 
     clarifies  that  the  provisions  for  child  custody  and                                                                 
     visitation, child support,  and spousal support entered in                                                                 
     a  legal  separation  constitute  a  final  order,  as  if                                                                 
     entered  into  a divorce.  On a  case-by-case  basis,  the                                                                 
     court  will decide whether  the division  of property  and                                                                 
     debts in a  legal separation is a final or interim  order.                                                                 
     The bill  also amends Alaska  Rules of Civil Procedure  by                                                                 
     adding  legal separation  to  the actions  over which  the                                                                 
     state has jurisdiction.                                                                                                    
     The bill  would only apply to  legal separations filed  on                                                                 
     or  after its  effective date.  Legal  separations issued                                                                  
     prior  would not be voided, nor  would they be subject  to                                                                 
     the provisions of this bill.                                                                                               
     Senate  Bill 126  clearly defines  legal  separation as  a                                                                 
     valid  action in  Alaska in  State Law.  This option  will                                                                 
     assist  the  courts,  attorneys  and,  most  importantly,                                                                  
     Alaskans who  need to formally handle the consequences  of                                                                 
     a  separation  with their  spouse,  yet retain  the  legal                                                                 
     status  as a married couple.  I respectfully request  your                                                                 
     consideration and support of SB 126.                                                                                       
Over the  last year,  Senator Wilken  and his  staff, Ms.  Moriarty,                                                            
have worked with  Fairbanks divorce attorney, Dan  Callahan, and the                                                            
Alaska  Family  Law  attorney,   Vanessa  White,  to  make  this  an                                                            
effective piece of legislation.                                                                                                 
CHAIRMAN THERRIAULT referred to page 2, lines 5-7 and asked whether                                                             
the mentioned statutes discuss division of assets and retirement                                                                
fund separation.                                                                                                                
KARA MORIARTY,  staff  for Senator  Wilken, said  yes, Mr.  Callahan                                                            
listed divorce  provisions that needed  to be included and  those on                                                            
page 2, lines 5-7 are among them.                                                                                               
CHAIRMAN THERRIAULT  wanted to know  whether a couple would  be able                                                            
to change the  provisions of a separation  decree if they  decide to                                                            
go on and divorce.                                                                                                              
SENATOR WILKEN  thought "the simple checkbook is the  best example."                                                            
If a couple's  marriage is "on the  rocks" and just one of  them has                                                            
control of  the checkbook, a judge  would step in and make  a formal                                                            
decree outlining  what was expected  of each spouse. If wanted,  the                                                            
couple is free  to return to the judge to have the  legal separation                                                            
absolved. On the  other hand, they may go from the  legal separation                                                            
into regular divorce proceedings.                                                                                               
MS.  MORIARTY said  that page  2,  lines 10-19  specifically  states                                                            
that, "If  the decree of  legal separation  includes provisions  for                                                            
division  of property  and debts of  the marriage,  the decree  must                                                            
state whether  the division is an interim or final  order." She went                                                            
on to say, "That doesn't  mean that the visitation and child support                                                            
couldn't be revised during the divorce proceedings as well."                                                                    
SENATOR PHILLIPS can't understand the need for the bill.                                                                        
SENATOR  WILKEN said he  had the  same concern  three years  ago but                                                            
after some  investigation,  he saw this as  a problem area.  At that                                                            
point, he approached  Mr. Callahan  and asked him whether  this type                                                            
of legislation would be  helpful. The answer was in the affirmative.                                                            
New  Hampshire   has  about  6,000  divorces  and   about  40  legal                                                            
separations  each year. Alaska has  about 4,000 divorces  a year and                                                            
would probably have between  30 and 40 legal separations per year if                                                            
this legislation  is  passed. This  is simply another  tool for  the                                                            
judge to use to  try to help the couple reconcile  their differences                                                            
before they proceed with divorce.                                                                                               
Ms. Fischer's  testimony  will  make clear  how easy  it is for  one                                                            
spouse  to gain advantage  over the  other when  the marriage  isn't                                                            
going well and how important  it is to help those in this situation.                                                            
SENATOR PHILLIPS said this  isn't a problem in his district but that                                                            
he'll "hear the testimony and make a judgment call."                                                                            
SENATOR DAVIS  said she believes  there might  be a need, but  since                                                            
legal separations are already  being granted in the State of Alaska,                                                            
why do we need the legislation?                                                                                                 
SENATOR WILKEN  said it has  been done, but  in Klassen vs.  Klassen                                                            
the Supreme Court  said that there was a legal separation  but there                                                            
is no  authorization  or statute under  which you  should have  done                                                            
that so it doesn't apply in the divorce proceedings.                                                                            
SHARON FISCHER, a constituent  of Senator Wilken, testified that she                                                            
approached  him with concern that  legal separation didn't  exist in                                                            
Alaska  statute. She  feels such  legislation could  have saved  her                                                            
She lived  in a  verbally and  emotionally abusive  marriage  for 15                                                            
years. Although  she asked  her husband to  leave several times,  he                                                            
refused  to do so.  Since she didn't  want a  divorce, she was  told                                                            
that her  only option  to get her  husband out of  the house  was to                                                            
file a domestic  violence restraining order. Because  he wasn't then                                                            
physically violent, she  chose not to file the restraining order and                                                            
stayed in the abusive situation.                                                                                                
The situation didn't get  better and finally, her husband threatened                                                            
her  physically. She  immediately  filed for  an  ex parte  domestic                                                            
violence order to have  him removed from their home and he responded                                                            
by filing for divorce.                                                                                                          
With an  ex parte domestic  violence restraining  order, the  abused                                                            
spouse must  return to court within  20 days and face the  abuser in                                                            
front of a magistrate.  Even a permanent order must be renewed every                                                            
six months. "A  study of court records shows that  each time couples                                                            
return to  court under  domestic violence  restraining orders,  each                                                            
time the abuser  tends to be granted more and more  freedom, and the                                                            
victim tends to lose more protection."                                                                                          
She feels that  a legal separation early on might  have provided her                                                            
husband a wake  up call before his anger escalated  to a point where                                                            
effective counseling and reconciliation was impossible.                                                                         
SENATOR PHILLIPS  asked whether she could have gotten  a restraining                                                            
order if he was just verbally abusive.                                                                                          
MS. FISCHER  said  she was  advised that  unless  he was  physically                                                            
violent there was a possibility  that the restraining order wouldn't                                                            
be granted. Verbal and emotional abuse usually isn't enough.                                                                    
CHAIRMAN THERRIAULT  asked whether a spouse would  be precluded from                                                            
living  in  the  home  if legal  separation  was  filed  but  not  a                                                            
restraining order.                                                                                                              
MS. FISCHER  said  it was  similar to  divorce proceedings  and  the                                                            
spouse wouldn't be free to live in the family home.                                                                             
One of her  husband's abusive behaviors  was to remove her  from all                                                            
joint bank  accounts and she had no  recourse. If she had  been able                                                            
to file a legal  separation, he wouldn't have been  able to continue                                                            
to do that.                                                                                                                     
SENATOR PHILLIPS asked  whether the roles couldn't be reversed and a                                                            
wife ask the husband to leave the house when she's the abuser.                                                                  
MS. FISCHER said of course.  In her instance, if she and her husband                                                            
had been  able to agree  to terms  under which  he would leave  then                                                            
they could have  agreed to a legal separation. However,  in domestic                                                            
violence situations  agreement is difficult to impossible.  There is                                                            
no motivation  on the  part of the  abuser to  relinquish power.  As                                                            
personal evidence,  she said her husband  filed for divorce  as soon                                                            
as she took steps to create boundaries.                                                                                         
SENATOR PHILLIPS  said he was playing Devil's advocate  in asking if                                                            
she  couldn't  have  taken  advantage   of  the  situation  if  this                                                            
legislation was passed.                                                                                                         
MS. FISCHER  wasn't  sure clear  on how  this legislation  could  be                                                            
SENATOR  PHILLIPS  said a  wife  could ask  a  husband  to leave  if                                                            
they're not getting along.                                                                                                      
MS. FISCHER responded  that she could file for divorce  for the same                                                            
reason. This  couldn't be  abused any more  than filing for  divorce                                                            
but it  would allow a spouse  the opportunity  to receive  financial                                                            
protection  and  establish  custody  issues  and  property  division                                                            
before difficulties escalate to a point of no return.                                                                           
SENATOR PHILLIPS said this  is a "double edged sword" and it must be                                                            
Number 2025                                                                                                                     
Ms. FISCHER said that in  her experience in talking with counselors,                                                            
pastors and  spouses in crisis, the  only individuals that  objected                                                            
to this legislation  are abusive spouses.  Her judgment is  that the                                                            
objection stems from a loss of control over the other person.                                                                   
CHAIRMAN THERRIAULT  said that if  an individual wanted to  save the                                                            
marriage then  this would be a useful  tool that would provide  some                                                            
measure  of protection.  An  equitable  separation  of assets  isn't                                                            
guaranteed  with   a  simple  separation.  One  spouse   could  take                                                            
advantage  of the  other. Also,  this would  provide guidelines  for                                                            
asset division for couples  that are separated but won't divorce for                                                            
religious or other reasons.                                                                                                     
He asked Ms. Moriarty to discuss paternity issues.                                                                              
MS. MORIARTY,  staff to Senator  Wilken, said  that Bureau  of Vital                                                            
Statistics  (BVS)  called  their  office  with  concerns  about  the                                                            
legislation.  One such concern  is that when  a married woman  has a                                                            
child, the  husband's name  is supposed to  automatically go  on the                                                            
birth  certificate.  In the case  of a  legal separation,  there  is                                                            
probability  that the father  of a child is  not the husband.  There                                                            
are  provisions  in statute  for the  husband,  the  mother and  the                                                            
father of the  child to sign an affidavit  stating that the  husband                                                            
is not the father  thus allowing the biological father's  name to be                                                            
put on the birth  certificate. Legislative Legal interprets  that to                                                            
mean that statute  wouldn't be altered in creating  legal separation                                                            
because the couple would still be legally married.                                                                              
CHAIRMAN THERRIAULT  agreed that maintaining that  current mechanism                                                            
is the way to  go. If the true father doesn't step  forward then the                                                            
husband may have a paternity test done.                                                                                         
MS. MORIARTY added that  a husband may sign an affidavit saying that                                                            
although he isn't  the biological father, he accepts  responsibility                                                            
for the child.                                                                                                                  
CHAIRMAN THERRIAULT  asked Senator  Wilken to outline the  two other                                                            
issues that needed mentioning for the record.                                                                                   
SENATOR  WILKEN said  the first  deals  with the  BVS compiling  the                                                            
information and Mr. Zangri is present to testify.                                                                               
AL ZANGRI,  Chief of the Bureau of  Vital Statistics, Department  of                                                            
Health  and  Social Services,  explained  that  whenever  a  divorce                                                            
action  takes place  in  the State,  the court  files  a report  and                                                            
divorce  certificate  with  BVS. This  way  BVS can  match  divorces                                                            
against marriages  and provide a track  for what's going.  This is a                                                            
central place where individuals  may go to get a copy of the divorce                                                            
if needed. Currently there  is no provision to file a certificate of                                                            
legal separation so BVS  won't be able to supply information on that                                                            
type of action like they do on marriages and divorces.                                                                          
Six or  seven states  have replied  to his request  asking how  they                                                            
process legal  separations. Three  states have a central  repository                                                            
and can  tell how  many divorces  and legal  separations they  have.                                                            
Four states  don't track  that information.  The  net effect  on the                                                            
individual  is that they will have  to remember which court  granted                                                            
the separation  if they want a certified copy of the  decree because                                                            
BVS won't have  that information in  their central repository.  This                                                            
may be problematic  10 years after  the fact when individuals  don't                                                            
remember which court granted their separation.                                                                                  
It's a trade  off between how much  it would cost and how  important                                                            
it is that the  information is easily accessed. BVS  currently has a                                                            
new automated  system  being built  but it isn't  designed to  track                                                            
legal  separations.  To  include them,  there  would  need  to be  a                                                            
contract  modification   agreement  and  that  would   be  expensive                                                            
considering that just 30  cases per year would probably be filed. If                                                            
there were 3,000 cases  per year to deal with it would be worthwhile                                                            
changing the contract.                                                                                                          
CHAIRMAN THERRIAULT  asked why it would be so expensive  to add this                                                            
data field.                                                                                                                     
MR.  ZANGRI  said  it's  because  they're  dealing  with  a  private                                                            
contractor  who sees it as an additional  form to be added  into the                                                            
system.  A new set  of logic  would have  to be built  to deal  with                                                            
legal separations as well  as the ability to print and track the new                                                            
CHAIRMAN THERRIAULT  asked about the  consequences of waiting  until                                                            
there  are enough  legal separations  filed  every  year to  warrant                                                            
keeping track.  Would the data be  collected from that date  forward                                                            
or would BVS go back and capture old data.                                                                                      
MR. ZANGRI  said they would track  from that point forward  but they                                                            
could put a  provision in regulation  to allow individuals  to bring                                                            
in copies of their old  separations to be entered into the system if                                                            
they so desired.                                                                                                                
DOUG  WOOLIVER,  Administrative   Attorney  with  the  Alaska  Court                                                            
System, said that procedurally,  legal separations are the same as a                                                            
divorce. He contacted  the court's technical staff  to inquire about                                                            
the  difficulty in  tracking  the numbers  of legal  separations  to                                                            
determine whether  it would be beneficial  to have BVS include  this                                                            
information  in their central  repository.  To his surprise,  he was                                                            
told it  would be a  simple matter  to add a  three-digit case  type                                                            
code for legal  separation so that they could determine  whether the                                                            
number of cases warranted a centralized system in BVS.                                                                          
CHAIRMAN  THERRIAULT noted  that there  was no  court system  fiscal                                                            
SENATOR WILKEN  said the three $1.5  million capital appropriations                                                             
for the  Alaska Court  computer system  probably  allows them  to do                                                            
CHAIRMAN  THERRIAULT asked  whether it would  be helpful to  include                                                            
direction that the tracking  system be implemented as recommended by                                                            
Legislative Legal.                                                                                                              
MS. MORIARTY  said the legal department  told her that if  the court                                                            
voluntarily  tracked  the  date  and it  was  accessible,  then  the                                                            
direction  to  track  language   wouldn't  be  necessary.    If  the                                                            
committee wants the data  on legal separation sent to BVS then there                                                            
would need to  be language to do that. However, if  the court simply                                                            
monitors  the data there  is no  directive language  needed at  this                                                            
CHAIRMAN THERRIAULT  thought is should  be tracked and reported.  He                                                            
asked whether the legal department suggested adding a section.                                                                  
MS. MORIARTY  said the suggestion  was to add  a new section  at the                                                            
end of the bill.                                                                                                                
CHAIRMAN THERRIAULT asked Senator Wilken if he had an opinion.                                                                  
SENATOR WILKEN  said that  if adding the new  section made  the bill                                                            
better he had no objection.                                                                                                     
CHAIRMAN THERRIAULT  moved a conceptual  amendment to work  with the                                                            
drafter  and sponsor  to add  direction  in state  statute that  the                                                            
court system  track the  cases with  a three digit  code and  report                                                            
them to BVS.                                                                                                                    
MS. MORIARTY asked  whether there was a preference  for how long the                                                            
court would monitor the data before reporting to BVS.                                                                           
CHAIRMAN THERRIAULT  asked whether  there was justification  for not                                                            
making the reporting ongoing.                                                                                                   
MS. MORIARTY  said there  was no reason that  reporting couldn't  be                                                            
MR. ZANGRI suggested that  the reporting be just once a year to keep                                                            
the number of reports to a minimum.                                                                                             
SENATOR  PHILLIPS  asked  whether  the amendment  would  generate  a                                                            
fiscal note from the BVS.                                                                                                       
CHAIRMAN  THERRIAULT   said  no  because   they  just  receive   the                                                            
He announced  final  action on  SB 126 would  be taken  at the  next                                                            

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