Alaska Divorce FAQs – Miscellaneous

This is about miscellaneous issues for divorce in Alaska, including residence requirements, grounds for divorce, common law marriage, annulment, legal separation, and any requirement for parent training in Alaska.

This information is from Steve Pradell, the DivorceInfo Network Lawyer for Alaska. Click here to visit his web site.

What are the requirements for residence?

A. Military Members

Alaska Statute 25.24.900,  Residency of Military Personnel, provides: A person serving in a military branch of the United States government who has been continuously stationed at a military base or installation in the state for at least 30 days is considered a resident of the state for the purposes of this chapter.

B. Alaska Residents

Generally, an adult who is present in Alaska at the time of filing for divorce with the intent to remain in Alaska as a resident may file for divorce.

C. Child Custody Jurisdiction

In order for Alaska to be considered the “home state” of a child for purposes of child custody jurisdiction, a child normally must have been a resident of the state for a period of at least 6 months prior to filing the custody pleadings. Otherwise, the court may not have jurisdiction to decide custody issues.

What are the grounds for divorce?

Alaska Statute 25.24.050,  Grounds For Divorce, provides: 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) wilful 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(7) [Repealed. . .]

(8) 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;

(9) addiction of either party, subsequent to the marriage, to the habitual use of opium, morphine, cocaine, or a similar drug.

Is there such a thing as common law marriage?

Alaska does not normally recognize common law marriage.  However, in the recent case of Tolan v Kimball decided October 19, 2001, the Alaska Supreme Court made some observations about property division of unmarried couples who cohabitate, including:

We [in a previous case] addressed the question of whether, in dividing property acquired during the course of a relationship between unmarried cohabitants, the superior court correctly credited the man with one-half of the payments he had individually made on a condominium owned by the two parties as tenants in common. . . We held that as a matter of law the superior court correctly concluded that “for unmarried cohabitants, the intent of the parties will control division for property acquired before separation.” . . . In summary, we hold that courts, when dealing with the property disputes of a man and a woman who have been living together in a nonmarital domestic relationship, should distribute the property based upon the express or implied intent of those parties.” [Footnotes omitted]

How does annulment work?

Alaska Statute 25.24.020, Void Marriages, provides:

A marriage which is prohibited by law on account of consanguinity between the persons, or a subsequent marriage contracted by a person during the life of a former husband or wife which marriage has not been annulled or dissolved is void.

Alaska Statute 25.24.030, Voidable Marriages, Provides:

A marriage may be declared void for any of the following causes existing at the time of the marriage:

(1) that the party in whose behalf it is sought to have the marriage declared void was under the age of legal consent, and the marriage was contracted without the consent of the parents, guardian, or person having charge of that party, unless, after attaining the age of consent, the party for any time freely cohabited with the other as husband and wife;

(2) that either party was of unsound mind, unless that party, after coming to reason, freely cohabited with the other as husband and wife;

(3) that the consent of either party was obtained by fraud, unless that party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;

(4) that the consent of either party was obtained by force, unless that party afterwards freely cohabited with the other as husband and wife;

(5) failure to consummate the marriage at the time of the marriage and continuing at the commencement of the action.

Is there such a thing as legal separation? If so, how does it work?

In the past, family law attorneys were at a loss as to how to advise a client as to whether there was a legal separation in Alaska.  No statute or Alaska Supreme Court case addressed the issue.  In December of 2000, the Court reviewed this important area, but left the final answers still unresolved.

In Glasen v. Glasen, 13 P.3rd 719 (Alaska 2000), the husband filed a complaint for legal separation in 1991 and the parties signed a separation agreement.  The superior court granted a decree of legal separation incorporating the agreement.  The parties then reconciled and were later found to have remained a financial and marital unit.  In 1997 the husband filed for divorce and sought to enforce the 1991 separation agreement.  The superior court refused to merge the separation agreement into the divorce decree and the father appealed.

The Alaska Supreme Court first reviewed the issue of whether the superior court had authority to enter the separation decree.  The superior court had found that it had “inferential authority recognizing the validity of separation agreements” because the legislature referred to “legal separation” in custody and support statutes indicating that such actions may be brought.  The father also argued that the court had authority to enter the separation decree because of the existence of common law actions for separate maintenance.

Unfortunately, with the issue before it, the Court stated “[w]e need not decide in this case whether courts in Alaska may enter decrees of legal separation.  Instead, we affirm the superior court’s decision because we conclude that the decree, even if authorized, was not a final order and that the Glasen’s reconciliation dissolved the decree.” The Court found that the legal separation decree was an interim order that was “provisional and conditional, affording an opportunity for reconciliation.”  The separation decree failed the test of a final judgment which requires that the judgment must dispose of the entire case, ending the litigation on the merits and leaving nothing for the court to do but execute the judgement.

Ultimately, the court found that the Glasen’s separation decree was valid only insofar as it settled certain support and property issues between the spouses while they were separated.  Reconciliation of the Glasens was found to be a separate basis for affirming the superior court’s decision not to incorporate the separation decree into the divorce decree.

Where does that leave family law practitioners?  How do we advise our clients when asked if legal separations exist in this state?  Clients who file a complaint for legal separation still run the risk of having their case dismissed for failure to state a cause of action. Prenuptial and postnuptial agreements are valid in Alaska if they meet certain conditions.  See Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987); Lampert Through Thurston v. Estate of Lampert Through Stauffer, 896 P. 2d 214 (Alaska 1995); McBain v. Pratt, 514 P2d 823, 826 (Alaska 1973). See, also, AS 13.11.085, which provides that married couples may waive all rights of the surviving spouse by written contract executed before or after marriage.

A legal separation agreement may ultimately be construed as a valid postnuptial agreement.  However, whether or not the court upholds the agreement in a subsequent divorce will depend upon many factors that may hinge on future events yet unknown at the time the agreement is drafted by the parties.

Do parents of minor children have to go through parent training? If so, how much does it cost, and how long does it take?

Under Alaska Law the court has the power to order that the parties engage in personal or family counseling, but this is normally not a requirement in Alaska. A judge has the discretion to order parties to go to parenting courses.  In order to obtain a dissolution, parents must first obtain a certificate of completion of watching a video entitled “listen to the children.” Prices vary according to the programs. The video described above is free.

Other issues in Alaska: