Rep. Bob Phalen, R-Lindsay, answers questions from the House Judiciary Committee on his House Bill 237 on Friday, Jan. 20, 2023. (Photo by Blair Miller, Daily Montanan)
A bill that would have Montana courts take into consideration adultery or physical abuse when considering division of property during a couple’s divorce could harm abuse victims and cost them even more in attorney’s fees, a prosecutor and family law attorneys said Friday.
“This bill is giving abusive partners a legal tool to use allegations of adultery in a public forum against their spouse to harass, humiliate and intimidate them into staying in a violent relationship,” said Emily Lucas, a Missoula family law attorney who testified in opposition to House Bill 237.
The bill, sponsored by Rep. Bob Phalen, R-Lindsay, says in considering how to divide up assets and property during a couple’s divorce, a court “shall” consider “physical abuse or adultery that substantially contributed to the irretrievable breakdown of the marriage” along with a host of other things, like how long they were married, their income levels, health and more.
Another bill Phalen is running this session, House Bill 204, to allow a divorcee whose spouse cheated on them to recoup financial losses was tabled during executive action Friday.
Under House Bill 237, which saw its first hearing Friday, if a court finds the abuse or cheating “substantially” contributed to the deterioration of the marriage, it “may” order the abuser or cheater to pay “a reasonable amount” of the other spouse’s attorney’s fees.
The bill further adds that “physical abuse or adultery alone” could allow the court to split the couple’s assets disproportionately. The measure would also apply to orders in which one spouse has to cover ongoing living costs for the other.
Current law says courts have to make that decision “without regard to marital misconduct.”
One of the proponents who testified was a woman who said she ran a domestic violence program on the Hi-Line. She said perhaps adultery and physical abuse needed to be defined, though she said she believed physical abuse included adultery.
Phalen said he was open to a possible amendment defining each.
Another proponent, Ty Kuehn, testified at the hearing on HB204 this week and again on Friday. He said he is “a victim and survivor” of adultery and the measure would “give victims a chance of recovery.”
Lucas, who said 90% of her caseload involves survivors of domestic violence, told the House Judiciary Committee the bill, if passed, “would be devastating for survivors.”
She said abusers often accuse their spouses of adultery to “exercise power and control” over them and the bill would help them utilize the justice system to continue the cycle.
Lucas also said the measure would encourage parties to litigate who is at fault for the breakdown of the marriage, which would exacerbate already costly divorce proceedings. It would also further overburden courts where half of the cases involved family law, she said.
Phalen offered at the end of the hearing that perhaps he should bring a bill for lawyers to perform pro bono work in these cases.
Ben Halverson, a domestic violence prosecutor for the City of Billings, said he was concerned judges might believe “absurd justifications abusers employ.”
“The question we always get is why doesn’t she just leave? Well, this bill will help answer that question if it passes,” he told the committee.
He, too, explained how domestic abusers – who are usually men, he said – see their wives as property and expendable resources and themselves “almost always (as) the victim.” He said the bill treats violence and adultery as the “exact same thing.”
“Leveling accusations of infidelity is very easy to do but much harder to defend,” Halverson said. “Leveling accusations of domestic violence requires some sort of proof, and remember, one of these things is illegal; the other is not.”
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