Alaska Divorce Law

Dissolution:

In Alaska, a Dissolution of Marriage refers to an uncontested divorce. It is a mutual agreement to end a marriage, where both parties agree on all terms regarding division of property and debt, as well as custody and visitation or parenting plan, if applicable.

Divorce:

A Divorce refers to the ending of a marriage by a court order. It specifies the contested proceeding used to divorce, rather than the un-contested proceeding (Dissolution).

Residency Requirement:

To file for divorce/dissolution in Alaska, the filing spouse must be a resident of the state. To be considered a resident for purposes of divorce/dissolution, one must be in Alaska when filing with the intention of remaining as a resident.

If the spouse seeking the divorce doesn’t live in Alaska and the couple was married outside of the state, but the other spouse is an Alaska resident, it is permittable to file for divorce/dissolution in Alaska.

Military Members or Military Spouses:

If one is serving in the military and is continuously stationed at a military base in Alaska for at least 30 days, he/she is considered an Alaskan resident for the purpose of filing for divorce/dissolution. However, active duty military members do have three choices for venue when filing for divorce:

• The state where the military member is stationed;
• The state where the military spouse resides; or
• The state where the military member claims legal residency (This may be the state where he/she is originally from or the state where he/she plans to reside after discharge or retirement).

Either spouse may file for divorce in any of the three locations, but they must follow the divorce laws, and procedures of the state in which they file.

Filing:

An action for divorce/dissolution should be filed with the local Superior Court. The necessary forms may be obtained online from the Alaska Court System’s Self-Help Center.

The Plaintiff, (filing spouse), must serve the Defendant, (non-filing spouse), with copies of everything that has been filed, plus the summons and standing order, either by certified mail/return receipt/restricted delivery or process server.

The Defendant has 20 days from the date he/she was served to respond to the Complaint for Divorce. If no response is filed, the Plaintiff may request a default. If the defendant files an Answer, the case will move forward as a contested case and be set for trial.

Generally, one must wait at least 30 days after filing for divorce/dissolution before the judge will grant the final divorce decree.

Default:

If the Defendant does not file an Answer to the Complaint within 20 days of being served, the Plaintiff may ask the court to default the other side and grant everything he/she asked for.

He/she must file a Default Application and proof that he/she served the Defendant according to the rules. Proof of Service includes the green return receipt from the post office signed by the Defendant or a return of service from the process server who served the Defendant. Many courts require that all final documents be filed at this time as well.

Either the Plaintiff or the local court will schedule a default hearing. At the hearing, the Judge will go over the Complaint and all the other documents and ask the Plaintiff some questions to verify that a default can be entered. If the Defendant does not appear, the Judge will consider only the Plaintiff’s Complaint when issuing a judgment in the case.

If the court has set a hearing for default and the Defendant then wants to participate, he/she would need to file a Motion and Affidavit to Set Aside Entry of Default and Accept Late Filed Answer. If the court grants this request, the case will proceed with both parties having the opportunity to participate.

If the Defendant files an Answer to the original Complaint without the Motion & Affidavit to Set Aside Entry of Default, the court may still proceed with the default process. If the Defendant submits a Motion to Set Aside Default Judgment with an affidavit and a proposed order, within one year of a default judgment, the Judge may review the judgment. The motion must explain why the court should set aside the default judgment, subsequent to Civil Rule 60(b).

Spouse's Name:

In a judgment in an action for divorce or annulment, the court may change the name of either of the parties. If a party seeks a change of name to a name other than a prior name, the court shall set a date for hearing at least 40 days after filing of the action.

Notice of the application for the change of name to that other than a prior name and the date of the hearing shall be published once each week for four consecutive weeks before the hearing in a newspaper of general circulation in the judicial district. The court may require other postings as well.

If the court is satisfied that no reasonable objection exists to the assumption of the new name, it shall authorize the party to assume the name 30 days after the judgment is issued. Within 10 days of the judgment, the party assuming the new name shall publish notice of the approval of the name change in a newspaper of general circulation in the judicial district. Again, the court may require additional postings.

There are eight statutory grounds for divorce in Alaska, most of which require a finding of fault on the part of one of the spouses. However, one grounds, incompatibility of temperament is considered no-fault and is used most often.

A divorce may be granted for any of the following grounds.

1. Failure to consummate the marriage at the time of the marriage and continuing at the commencement of the action;

2. Adultery;

3. Conviction of a felony;

4. Willful desertion for a period of one year;

5. Either; a. Cruel and inhuman treatment calculated to impair health or endanger life; b. Personal indignities rendering life burdensome; or c. Incompatibility of temperament;

6. Habitual gross drunkenness contracted since marriage, and continuing for one year prior to the commencement of the action;

7. Incurable mental illness when the spouse has been confined to an institution for a period of at least 18 months immediately preceding the commencement of the action; the status as to the support and maintenance of the mentally ill person is not altered in any way by the granting of the divorce;

8. Addiction of either party, after getting married, to the habitual use of opium, morphine, cocaine, or a similar drug.

If the court declares a marriage void, there is a judicial statement that there never was a marriage, and the parties were never united as husband and wife. Although more commonly known as annulment in other states, Alaska courts may declare a marriage void for any of the following causes:

• One of the parties is already married to someone else;
• The parties are more closely related to each other than third cousins;
• One of the parties was a minor and his/her parents or guardian did not consent to the marriage;
• Either party was of unsound mind;
• One party caused the other party to fraudulently consent to the marriage;
• One party caused the other party to consent to the marriage by force; or
• Failure to have sexual relations.

However, if the parties voluntarily lived together as husband and wife after any of the following situations or events;

• the minor party reached the legal age;
• the party's mental state improved;
• the party learned of the fraud;
• being forced to get married; or
• had sexual relations;

then there would not be grounds to ask the court to declare the marriage void. There are no court forms to ask the court to declare a marriage void.

Alaska is an opt-in community property state. Property is considered separate property unless both spouses agree to make it community property through a community property agreement or a community property trust.

Statute allows the court to consider any factors it determines to be relevant when dividing marital property. Law provides for fair and equitable division of marital property, which includes debt. For a marriage of long duration, this often results in a 50/50 split. For a marriage of shorter length, the judge may restore to each party the separate property that each brought into the marriage, and divide any remaining property as fairly as possible.

There is a three step process for handling property and debt in a divorce/dissolution:

1. Identify the marital property and debt.

2. Value the marital property and debt.

3. Divide the marital property and debt.

To identify the marital property, one must distinguish between marital property and separate property. Generally, marital property and debt is an property or debt acquired during the marriage for the benefit of the marriage. Although property brought into the marriage by one spouse is usually considered separate property, it can become marital property when the couple demonstrates an intent, through their words or actions during marriage, to treat one spouse’s separate property as marital property. Individual gifts and inheritances are generally separate property.

Merrill Factors:

In Alaska, the court considers Merrill factors, as established by statute, when determining division of marital property. These factors include the following:

• The length of the marriage and station in life of the parties during the marriage;
• Age and health of each party;
• Earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;
• Financial condition of the parties, including the availability and cost of health insurance;
• Conduct of the parties, including whether one party depleted the marital assets;
• The desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of the children;
• Circumstances and necessities of each party;
• Time and manner of acquisition of the property in question; and
• Income-producing capacity of the property and the value of the property at the time of division.

Rule 26.1 governs the information that must be disclosed by the parties in a divorce or legal separation action.

Statute allows the court to consider any factors it determines to be relevant for spousal support, and also considers most of the Merrill Factors when determining spousal support.

While a divorce is pending, either party can file a temporary order requesting that the other spouse pay reasonable spousal support.

Alaska identifies two types of spousal support. Rehabilitation support, which can last up to four years, allows the spouse receiving support to attend school to train or re-train for a career. Reorientation support, which lasts only up to one year, assists the spouse who is left with far less than when he/she entered the marriage, or when the division of the community assets fails to meet his/her financial needs.

Custody:

The best interest of the child standard applies when determining child custody. The court shall consider the following factors when determining this.

1. The physical, emotional, mental, religious, and social needs of the child;

2. The capability and desire of each parent to meet these needs;

3. The child’s preference, if the child is of sufficient age and capacity to form a preference;

4. The love and affection existing between the child and each parent;

5. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

6. The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;

7. Any evidence of domestic violence; child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;

8. Evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child; and

9. Other factors that the court considers pertinent.

When awarding custody, the court may only consider those facts that directly affect the well-being of the child.

Domestic Violence and Child Custody:

A history of domestic violence and or/abuse has an effect on child custody and visitation. The law says there is a presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child.

If the court finds that a parent has a history of perpetrating domestic violence, the court shall allow only supervised visitation by that parent with the child, conditioned on that parent’s participating in and successfully completing an intervention program for batterers, and a parenting education program.

If it is shown that the domestic violence offender has completed a substance abuse treatment program, as deemed appropriate, is not abusing alcohol or psychoactive drugs, does not pose a danger of mental or physical harm to the child and it is in the child’s best interest, the court may allow unsupervised visitation.

Support:

Civil Rule 90.3 describes how child support must be calculated. It is based on a Flat Percentage of Income Model.

Alaska bases child support calculations on the percentage of the net income of the obligor (the one who pays). The income of the custodial parent is generally not taken into account.

The child support calculation is based on the adjusted annual income of the non-custodial parent after deducting certain allowed expenses. These are predominantly mandatory deductions; such as taxes, union dues, mandatory retirement contributions, and the Alaska state employee Supplemental Benefits System contributions. There is one optional, non-mandatory item: voluntary contributions to a retirement, pension plan, or account in which the earnings are tax-free or tax-deferred. But this may not exceed more than 7.5% of the parent’s gross wages and self-employment income.

The resulting adjusted annual income will then be multiplied by the following percentages:

20% for one child;
27% for two children;
33% for three children;
plus An extra 3% for each additional child.

On occasions where the non-custodial parent spends extended summer vacations with the children or has the children in his/her extended care at other times, that non-custodial parent can reduce his/her child support payments by up to 75% for any period in which he/she has extended visitation of over 27 consecutive days. This must be court ordered.

A married couple may obtain a legal separation if there is a breakdown in the marriage and they want to live separately but remain legally married. A legal separation may be granted no more than once to the same married couple.

The judge hearing a legal separation case can issue orders regarding child support and custody; spousal support; and the division of property and debts.

A legal separation may be granted by the court based on a finding that an incompatibility of temperament exists between the couple; and the continuation of the couple’s status as married persons preserves or protects significant legal, financial, social, or religious interests.

One of the spouses must be a resident of Alaska when the complaint for legal separation is filed. If, at any time, one of the parties to an action for legal separation files an action for divorce or annulment, the court shall consolidate the new action with the action for legal separation.

There are no court forms for legal separation.