If you’re like most people who are contemplating divorce, you don’t know much about how the Alaska divorce process works. As you click on this page you may be thinking: “What do I start?”” “How does the process work?” and “When will it be over?” If you are like me, you are probably asking yourself “Will my life ever be normal again?”
These are just a few of the many questions, which you may find swirling around in your head. My job is to make your life easier and to move your divorce case through the court system. My job is to answer your questions. And yes your life will be normal again. But it is going to be a new normal. But after all since life always changes, there is always going to be a new normal.
Here is a Roadmap of the Alaska Divorce Process.
Starting the Alaska Divorce Process
A divorce is initiated by the filing of a complaint. A complaint is the first document filed in any lawsuit, and it outlines the facts a party expects to prove. It also outlines the relief the party is requesting from the court.
The party filing the complaint is called the plaintiff, and the party answering the complaint is called the defendant. The complaint and the answer are jointly called pleadings.
Twenty days after the complaint is served on your spouse (the defendant), he or she must file an answer. The answer sets forth your ex’s response to each of the allegations contained in the complaint.
Frequently, a defendant will file a counter-claim. In a divorce case, the counter-claim is usually a mirror image of the complaint with a few changes.
The court rules allow a plaintiff 120 days to serve the complaint. Once 120 days have elapsed, the clerk of the civil court will send a notice to the plaintiff indicating that the case will be dismissed unless the plaintiff can show a good reason for not serving the defendant.
(My experience has been that it takes a lot longer than 120 days for the clerk to get around to sending out this notice.)
If a defendant fails to file an answer, then a plaintiff may file for what is known as a default judgment or divorce by default. This means the court will divorce the parties and divide the property without any input from the defendant.
Mandatory Disclosures and Discovery
Forty-five days after filing an answer, you and your spouse will be required to give each other (through your attorneys) certain information.
Often, the information is redundant because the parties have the same access to the information.
Depending on the complexity of the case, I will obtain additional information from the other party (or his or her) attorney through the process of discovery.
Discovery is the modern procedure by which one party gains information in the possession of the other party about the case. Common types of discovery include:
- Depositions (taking a party’s testimony in front of a court reporter)
- Interrogatories (a list of questions)
- Production of documents
- Request for admissions
Discovery is due within 30 days. If it is mailed to the opposing party, it is due 33 days from the date it is signed by the attorney.
While the parties are exchanging information, the attorneys will discuss the case to see if it is possible to settle. If settling isn’t a possibility, we’ll need to gather the information necessary to hold a formal hearing before the judge. This formal hearing is a trial, but there will be no jury.
Moving the Case Toward Trial
If it appears that a case is not going to settle, I contact the court system either informally or through formal paperwork and request that the court set a trial date.
The first document that we usually receive from the court is a document called a trial setting memo. Sometimes clients become confused and think the date of the trial setting conference is the date of trial – but don’t be alarmed. This is merely a date to get a date.
Once we get a trial date you will be given notice. You’ll need to put it on your calendar, because it’s mandatory.
Trial Preparation and Trial
You’ll need quite a bit of supporting documentation when you go to trial. I’ll work with you to figure out what we need and, if possible, I’ll help you get it.
As soon as I open a file, I start compiling a list of all the parties’ real and personal property. This tends to be an ongoing process.
The mandatory disclosures outlined above set forth the general categories of property. In addition to the property, we have to identify all the parties’ debts. That’s because the court will allocate properties and debts when it divides the property.
Property Valuations and Appraisals
If we go to trial, we will need to have values assigned to all the real and personal property.
Real property is generally easy to value. We can obtain a broker’s opinion of value or a formal appraisal. I generally do not rely on property tax assessments, because those tend to be low.
Of course, if the parties can agree to the value of property then it is not necessary to have the real property valued.
In a case where the property is being sold, (assuming a sale occurs before the date of the divorce hearing) then the sale price will be the value.
Personal property frequently presents problems. Sometimes personal property “disappears.” Almost without fail, one party or the other will claim that there is missing property.
It is obviously very difficult to value property that no longer exists. Furthermore, prior to the time the parties separate, each party has the absolute right to use or dispose of personal property or other assets.
The exception to this is the case where it is possible to establish that a party intentionally hid, sold, transferred, or squandered assets at a time that the likelihood of a divorce is almost certain.
In a case where there is missing property, I ask the client to make a list and assign values to each item. In the case of items such as antiques, collectibles, artwork or ivory, I will refer the client to an antique dealer who will help the client reconstruct the property to value it.
If we have been unsuccessful in reaching a settlement to divide all the property and debts, we will actually start getting ready for trial.
In order to prepare for trial, we’ll need to identify all witnesses who will testify. This typically includes:
- The plaintiff
- The defendant
- A certified public account (to discuss any tax or pension issues)
- The real and personal property appraisers
We will label all exhibits, which will include:
- Reports issued by the accountant and the appraisers
- Tax returns
- Bank statements
- Miscellaneous documents.
I will write a trial brief, which is a document that outlines our position on each of the issues in the case.
The Day of Trial
At trial, each side will get to make an opening statement that outlines the evidence they expect to prove at trial.
Each side will present all their testimony and exhibits, and finally, each side will get to make a closing argument. The closing argument allows each attorney to summarize the evidence and argue his or her client’s position.
The judge will listen to all the evidence and make a decision. Eventually.
Sometimes, the judge will make a decision in court from the bench. But this is pretty rare. You should expect the judge to take anywhere from two to six months. Which brings me to the topic of delays. Click this link to learn more about how delays can become a hidden cost of trial.