Divorce – State FAQ – Alaska
Residency requirements, venue and procedures
Q: How long must I have lived in Alaska prior to filing for divorce in an Alaska court?
A: Alaska requires that the spouse filing for divorce be a resident of the state. There is no residency time limit for filing divorce actions.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Alaska, proper venue for the divorce action is the Superior Court in the jurisdiction where the defendant resides.
Q: What is the title of the document initiating the action for divorce? The document granting the divorce?
A: If the divorce is based upon grounds of fault, the title of the action initiating the proceeding is a Complaint for Divorce, while the title of the action granting the divorce is referred to as the Judgment of Divorce. If the action is based upon the no-fault grounds permitted in Alaska (“incompatibility of temperament”), the action is entitled a Petition for Dissolution of Marriage, and the title of the action granting the divorce is referred to as the Decree of Dissolution of Marriage.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: If the action is based upon grounds of fault, the party filing the action is referred to as the Plaintiff and the other party is the Defendant. If the proceeding is based upon the no-fault grounds, the party filing the action is the Petitioner, and the other party is the Respondent.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Alaska. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Alaska?
A: The recognized grounds for divorce in Alaska include:
1.Failure to consummate the marriage.
3. Conviction of a felony.
4. Willful desertion for a period of one year.
5. Cruel and inhuman treatment.
6. Personal indignities rendering life burdensome.
7. Incompatibility of temperament.
8. Habitual drunkenness or addiction to drugs.
9. Incurable mental illness.
Q: What is the difference between “fault” and “no-fault” grounds for divorce, and how does this relate to “contested” and “uncontested” divorces?
A: The “no-fault” ground for divorce in the list of grounds above is (7.) “incompatibility of temperament.” “No-fault” means that the fault of one of the parties in destroying the marriage is not an issue in the divorce. Spouses obtaining a no-fault divorce usually agree on all terms of the divorce (property division, child custody, etc.). This is known as an uncontested divorce. However, if the parties cannot agree on terms, the divorce is a “contested divorce”. It is possible to agree to “no-fault” grounds, end up in a contested divorce due to disagreement about terms.
Q: How are disagreements in a contested divorce resolved?
A: The judge decides all issues on which the parties cannot agree. Normally the judge must also approve agreements between the parties to make sure they are not fundamentally unfair to one party.
Q: Can I use a USLF divorce package to fully resolve a contested divorce?
A: A contested divorce is beyond the scope of USLF’s divorce packages. We highly recommend you obtain a local attorney to represent you in a contested divorce. However, the USLF divorce package may get you started and save you time and money (especially some of your attorney’s fees) if your divorce ends up being a contested divorce.
Dissolution of marriage (“no-fault divorce”)
Q: Under what conditions may my spouse and I jointly file for a no-fault divorce?
A: The spouses may jointly file for dissolution of marriage if:
1. Incompatibility of temperament has caused the irremediable breakdown of the marriage.
2. If there are unmarried children of the marriage under the age of nineteen (19) or the wife is pregnant, all issues regarding custody, support and visitation have been settled.
3. The spouses have agreed to the distribution of all real and personal marital property and,
4. The parties have reached an agreement regarding the payment of all unpaid obligations incurred by either or both of them, and for the payment of obligations incurred jointly in the future.
Q: Under what conditions may I file separately for dissolution of marriage?
A: You may file separately for dissolution of marriage if:
1.Incompatibility of temperament has cause the remediable breakdown of the marriage.
2. The petitioning spouse is unable to determine the other spouse’s position regarding dissolution of the marriage, division of property, alimony, payment of debts, custody, child support, etc.
3. The other spouse cannot be served with process inside or outside the state.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party? Is a party’s degree of fault considered?
A: Fault is not normally considered when awarding alimony. Factors the court will consider include:
1. The length of the marriage and the station in life of the parties during the marriage.
2. The age and health of the parties.
3. he earning capacity of the parties.
4. The financial condition of the parties.
5. The conduct of the parties, including whether there has been an unreasonable depletion of marital assets.
6. The division of property.
Any other relevant factors.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: The court shall determine custody based upon the best interests of the child. Standard, legally recognized factors will be considered (see, Alaska Divorce Info on the Alaska Divorce Main Page).
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Alaska has established Child Support Guidelines which set the presumptive correct amount of child support. Deviation from these guidelines require a showing that application of the guidelines would result in an injustice.
Division of Property
Q: On what basis does the court decide how marital property is divided?
A: Alaska is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property, each case will be decided on its facts, and the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Q: Is legal separation recognized?
A: Yes. A legal separation may be granted by the court based on a finding that 1) an incompatibility of temperament exists between the parties; and (2) the continuation of the parties’ status as married persons preserves or protects significant legal, financial, social,or religious interests. Sec. 25.24.410. One of the parties to a complaint for legal separation must be a resident of the state at the time the action is commenced. Sec. 25.24.420. If, at any time, a party 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. Sec. 25.24.430.
Q: What is the effect of legal separation?
A: A decree of legal separation does not restore the parties to the status of unmarried persons. A decree of legal separation modifies the parties’ rights and responsibilities as married persons only to the extent specified in the decree of separation. Sec. 25.24.460.
Q: May a husband and wife file jointly for a legal separation?
A: Yes. A husband or a wife may separately or jointly file a complaint in the superior court for a legal separation. A legal separation may be granted no more than once to the same married couple.