ATTORNEYS AT LAW 1009 W 7TH AVENUE ANCHORAGE, ALASKA 99501 TELEPHONE: (907) 279-4529 FAX: (907) 279-9223
As it stands today, any married Alaskan can file for a divorce by telling the court that there is an incompatibility of temperament making it impossible for the married couple to continue to live together as husband and wife. This "no fault" concept makes it easy to obtain a divorce: even if the other spouse objects, the court will grant a divorce on the grounds of incompatibility of temperament.
New legislation has been introduced which would make it more difficult to obtain a divorce. This is an attempt to revive the "fault" requirements for divorce which were the status quo in America until the last few decades. Alaska, representative Pete Kelly his introduced house bill number 390, which would, if passed, create a "charter marriage" in this state which couples could choose to enter.
The charter marriage concept is premised on the belief that marriage is a lifelong serious commitment which should not easily be broken.
While the philosophy of a charter marriage is positive and the intent to reduce the divorce rate is noble, the dangers which lurk in this new bill should it become law are numerous. For example, a spouse to a charter marriage may only become divorced if it is proven to a judge that the other spouse has committed adultery, has been convicted of a felony and sentenced to death or at least three years of prison, abandoned the marital home for at least one year and refuses to return, or after the court grants a legal separation and the couple have not lived together for at least one year, or eighteen months if the couple has children. A legal separation itself under the new rules is not automatically granted. In addition to proving that the spouse has obtained personal counseling, a spouse must prove either at least a one year separation period, or that the other spouse adultery, has a felony conviction, abandoned the home for at least one year, physical abuse of the spouse or physical or sexually abused a child, has been a habitual drug user or drunk, endangered the life of the other spouse, or certain other factors. A spouse to a charter marriage may not petition the court for a dissolution, nor may a spouse who is legally separated attempt to remarry.
What this means is that the focus of a divorce in a charter marriage may shift first to the issue of adultery, and away from property division and child custody. Divorce trials may begin to have the feeling of the Clinton/Lewinski soap opera, with spouses hiring private investigators in an attempt to prove unfaithfulness so that a divorce may quickly be granted.
The most dangerous aspect of the new laws concerns victims of violence, which takes many forms in families. It is often extremely difficult for those who have been subject to years of physical, emotional and/or sexual abuse to break away from a perpetrator and seek shelter and freedom from abuse. The new laws require that those who are subject to abuse can not initially petition for divorce. Instead they must first obtain counseling, and then ask the court to grant a separation and prove the abuse prior to obtaining separation judgment. Once the separation is obtained, the spouse subject to abuse must wait for at least a year or 18 months if there are children, and then and only then can a divorce judgment be granted. This process can take years.
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