The Divorce Process
by Craig B. Partyka

  
There are generally two ways for people to legally end their marriage.  One way is by divorce, the other is by dissolution.  This article provides some basic information about the divorce process.  A companion article explores the dissolution process.

The divorce process begins when one party files a complaint with the court.  Oftentimes people hire an attorney for this, however, some people choose to represent themselves without an attorney, called pro sé representation.  The complaint outlines the basic allegations for divorce, including for example, that an incompatibility of temperament exists between the parties such that reconciliation is impossible.  This statement essentially means that Alaska is a no-fault divorce state.  While Alaska law does provide that individuals can allege adultery or other legal grounds for divorce, such allegations are rarely seen because in making a fair division of the property, the courts will not consider the fault or unfaithfulness of a party.

The complaint may also contain allegations that one party should be awarded primary custody of the children and that child support is owed.  If child custody is disputed, a child custody investigation will be conducted to determine what custody arrangement will serve the children’s best interests.  The investigator writes a lengthy report and ultimately makes a recommendation to the court that carries significant weight.  Child support is calculated by applying a legal formula based on the parties’ incomes and the relative time each parent spends with the children.

Additionally, a party could allege in the complaint that the other spouse should pay spousal support (alimony) and attorney fees.   In Alaska, payment of alimony is disfavored by the courts.  In certain limited situations however, judges may order such payments when one spouse is unable to adequately support herself or himself. 

In sum, the divorce process begins with the complaint and the party filing the complaint must decide what to allege so that the other party has notice of what the lawsuit is about.  The party who receives the complaint has 20 days to file an answer to it.  After that, each side has 45 days to provide basic financial information to the other, such as what property is owned, the value of that property, and their income and retirement information.  Alaska’s civil rules govern and require this exchange of information.  The system is set up to discourage and even punish a spouse’s attempts to hide assets or income.  In this way, this mandatory exchange of information promotes settlement of the case.  Even after a divorce case is started by the filing of a complaint, the case can be settled at any time prior to trial.  If settlement is not reached, a judge will eventually decide property, custody and related issues at the divorce trial.

If your case goes to trial, the judge will determine what property is marital, the value of that property, and what division of the property will be fair and equitable.  If an equitable division of marital property is not possible, the judge may turn to the parties' separate property and order distribution of it to achieve an equitable division.  Separate property may include property acquired before marriage, after separation, or inheritances received by one spouse that have been kept separate from the marital finances.  If children are involved, the judge will order a child custody and visitation plan that is in the children’s best interests.  The judge usually relies heavily on the child custody investigator’s report when deciding custody and visitation issues.  However, the testimony of the parents can also play a vital role.

For people who are able to settle their property and custody issues themselves, see my companion article on the dissolution process.  However, even for these folks, I still recommend seeking a legal consultation and having an attorney review your final settlement agreement.

 Attorney Craig B. Partyka of the law firm of Cook Schuhmann and Groseclose, Inc. provides legal consultations and services in family law, estate planning, corporate, and employment related issues.  Please call Craig’s office at (907) 452-1855 to set up an appointment. This article is not intended to provide legal advice and should not be relied on for that purpose.