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Alaska Divorce FAQs - Property Division

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

• What’s the general rule of property division (equitable distribution, community property, or legal title)?
• What effect does the conduct of the parties have on property division?
• What effect does the length of the marriage have on property division?
• Is there such a thing as separate property? What does it take?
• Any special rules for the marital home?
• How do retirement plans get divided?

What’s the general rule of property division (equitable distribution, community property, or legal title)?

The Alaska Supreme Court has set forth the accepted method of legal analysis to be followed in determining property dispositions.  The first step is to determine the specific property available for distribution. Second the court must determine the value of all of this property. Finally, the court must determine the most equitable (i.e. the fairest) allocation of the property between the parties, beginning with the presumption that the most division of the property is an equal division.  Marital Assets are generally to be valued as close as possible to the date of trial.  The court must divide marital property pursuant to the following factors:

1. The respective ages of the parties and their normal life expectancy.

2. Their earning ability in the type of work for which they are qualified by training and experience.

3. The duration and conduct of each spouse during the marriage.

4. Their station in life.

5. The circumstances and necessities of each.

6. Their health and physical condition.

7. Their financial circumstances.

8. The time and manner of the acquisition of the priority in question.

9. The values at the time, and its income producing capability, if any

10. Any other factors bearing on the equities.

What effect does the conduct of the parties have on property division?

The court may focus on the conduct of the parties in determining how to divide marital property. For example, the Alaska Supreme Court has stated:

Where there is evidence that a marital asset was dissipated, wasted, or converted to a non-marital form, the court can  "recapture" the asset by giving it an earlier valuation date and crediting all or part of it to the account of the party who controlled the asset. [Citations omitted]

What effect does the length of the marriage have on property division?

In a short-term marriage, the court can, in appropriate cases,  use alternative approach to the traditional property division analysis normally employed in divorce cases. As the Alaska Supreme Court stated:

Concerning the division of property, this is a marriage of an extremely short duration. It’s possible to untangle these parties’ financial activities and to trace their respective contributions.   I also take into account their expectations, and what reasonable people expect under this type of circumstance, and what the community expects.  When people have been together a number of years, there’s an expectation that essentially what they have is theirs, but when people are together a very short time, as these two people were, there’s not that expectation,  nobody expects, even though, of course, one’s dreams and hopes are burst, it’s still economically not a unit and if tracing can be done, tracing should be done.

In light of the relatively short duration of the marriage and the fact that the parties, by their conduct, had indicated that they were economically not a unit, the court concluded that the best course was to leave the parties as it found them, each party taking his or her property.

In a long term marriage, there may be good reasons for the court to divide the marital estate in a way that is more favorable to a spouse who earns less income, and the court may consider alimony or other methods of providing for the support of a low earning long term spouse.

Is there such a thing as separate property? What does it take?

Property acquired prior to the marriage, inheritances, gifts and post separation income and earnings are normally not considered to be marital property subject to division upon divorce, and are severable from marital property.

Absent a showing that the parties intended the debt to be separate, the Alaska Supreme Court has stated "the trial court must presume that a debt incurred during the marriage is marital and should consider it when dividing the marital estate."

Any special rules for the marital home?

The marital home, if purchased during the marriage, is normally considered to be a marital asset which is divisible in a divorce. Parties can, by their actions and intentions, convert a premarital or otherwise non-marital asset such as a home purchased prior to a marriage, into a marital asset. The increased valuation of an asset such as a home may be considered by a divorce judge. Marital assets such as marital homes are normally valued for trial purposes as closely to the date of trial as possible.

How do retirement plans get divided?

As the Alaska Supreme Court has stated,

To the extent that a party earns retirement benefits during marriage, the benefits are marital assets and are subject to equitable division. . .For this reason, we held that "each spouse is presumptively entitled to an equal share of the retirement benefits earned during the marriage". . . And after observing that "[t]he superior court has inherent power, and also the duty, to enforce its decrees" we concluded that "[i]t was within the superior court's inherent power to award . . . a survivor annuity" [Footnotes omitted.]

Other issues in Alaska:

• Parenting
• Child Support
• Mediation
• Miscellaneous
• Property Division
• Alimony or Spousal Support
• Pro Se Divorce