The simple answer to this question is, no one knows anymore. It used to be a pretty straight forward “yes” for year until the Utah Court of Appeals decided the decision Mark v. Mark, 2009 UT App 374 a few years ago. In that case the Court of Appeals stated that it is “inappropriate to attach any consequence to the consideration of fault when making an alimony ward.” This was a confusing ruling considering that the state legislature specifically stated that trial courts may “consider fault of the parties in determining alimony.” The Mark court found that because the legislature had not defined what constitutes “fault” that trial courts did not have enough guidance to be able to consider it at all.
Well, in 2013, the state legislature changed the law to define exactly what constitutes fault for purposes of applying it to an alimony award:
- Adultery;
- Physically abusing or attempting to physically abuse a spouse or minor children;
- Knowingly and intentionally causing the other party or minor children to reasonably fear life-threatening harm; or
- Substantially undermining the financial stability of the other party or the minor children.
You would think that would be the end of it, right? Wrong. A couple of weeks ago the validity of Marks was raised in Roberts v. Roberts, 2014 UT App 211. In that case Husband appealed the district court’s decision to not consider Wife’s adultery in making an alimony award. The Roberts court found that Mark still applied to that case because at the time of the decision was made the legislature had not amended the statute to define fault. But the court went one step further and in a footnote stated “…we leave for another day the task of determining how the new law affects [the Mark] line of precedent” meaning for now Mark is still the law of the land.
Given that the legislature has stated that district courts “may” consider fault when awarding alimony, there seems to be little argument that Marks‘ reasoning is now moot and the Roberts court should have clearly stated that it is no longer good law.
