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.