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Here are some Utah Family Law topics I’ve been musing over.  Do you have any comments?  I welcome any thoughtful comments from non-spammers.

Note:  I am not a “father’s rights” divorce attorney.  The proposals I advance are based upon equitable, rational, moral principles that for too long have been ignored or foolishly rejected by the legislature, and apply to both parents and to families generally.

I hope these might prove stimulating topics for research and debate:

1) Utah law should be changed such that when a party files for no-fault divorce there is a rebuttable presumption that the complainant spouse is entitled to no alimony.  Why?  Given that the complainant is alleging no fault and the other spouse is willing to remain married and remains willing to support the complainant spouse, if the complainant spouse wants out of the marriage, fine, but don’t ask your allegedly innocent spouse to give you the support benefits of a spouse when you no longer wish to be married to your spouse.

2) Change the physical custody presumption from sole physical custody to a presumption that joint physical custody is in the best interest of the child.  The fight should not be over whether a parent is awarded sole physical custody, but whether joint physical custody cannot function successfully in the lives of both the child and his parents.

3) Change the standard for custodial determinations (both physical and legal custody) from best interests of the child to best interests of the (immediate) family at large.  To treat the interests of parents as if they do not exist when contemplating a child custody award is inequitable, irrational, immoral, and arguably unconstitutional. The “best interest of the child”  standard forces loving parents (who desperately wish to retain the companionship of their children and to retain parental contact and influence) to frame arguments based upon benevolent self-interest as contrived arguments for why the child and the child alone would benefit from a proposed custodial award.

4) Now that the Utah Court of Appeals has held (Mark v. Mark, 223 P.3d 476, 645 Utah Adv. Rep. 15, 2009 UT App 374 (Utah App.,2009) that the courts cannot consider fault in divorce actions on the subject of alimony until the legislature defines fault (see specific comment below), how should the legislature define fault (and not only for alimony purposes but for fault-based complaints for divorce generally as well)?

“¶ 18 As currently written, Utah Code section 30-3-5(8)(b) provides no meaningful guidance on this issue. Rather, the plain language simply grants trial courts discretion to consider fault in fashioning alimony awards. See Utah Code Ann. § 30-3-5(8)(b) (2008) (“The court may consider the fault of the parties in determining alimony.”). However, the Utah Legislature has provided no definition of what, exactly, constitutes fault. Accordingly, it is unclear whether fault relates to the alternate grounds for divorce contemplated by Utah Code section 30-3-1(3), see id. § 30-3-1(3) (listing grounds for divorce, including impotency, adultery, desertion, neglect, habitual drunkenness, felony conviction, cruel treatment, irreconcilable differences, and insanity), or if it means how the parties dealt with, for example, marital assets or liabilities, or some other behavior unrelated to the cause of the divorce. Where the legislature has not defined fault in the statute, it is virtually impossible for trial courts to quantify it, and the consequences thereof, when fashioning alimony awards. This is especially true in light of the sound no-punishment/no-reward precedent, see Davis, 2003 UT App 282, ¶ 9 n. 1, 76 P.3d 716, Christiansen, 2003 UT App 348U, para. 9, 2003 WL 22361312, which we decline to disturb here.

“¶ 19 Furthermore, consideration of fault is already built into the system on virtually every issue that arises in domestic cases. For example, if one spouse is at “fault” for dissipating assets or incurring substantial debt, the trial court may require that spouse to repay what has been lost, impute income, or compensate the other spouse with a property award or other assets. Moreover, if one spouse’s bad behavior has caused the other spouse to have medical issues, the trial court may consider the bad behavior when determining the recipient spouse’s increased financial needs. Where the system is replete with ways in which fault is taken into account, any additional consideration of undefined fault seems superfluous.

Ҧ 20 We will not substitute our judgment for that of the legislature. Accordingly, until the legislature clearly defines fault in the statute, it is inappropriate to attach any consequence to the consideration of fault when making an alimony award.

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