Marital Legal Separation and Property Settlement Agreement where Adult Children and Parties May have Joint Property or Debts and Effective Immediately
Note: This summary is not intended to be an all-inclusive
discussion of the law of separation agreements in Alaska, but does include
basic and other provisions.
General Summary: Separation and Property Agreements
may be entered into before a divorce is filed to be effective immediately,
or may be entered into after a divorce is filed to resolve all issues.
Property Settlement and Separation Agreements are more closely scrutinized
when part of an action for dissolution of marriage. The key factors
are all a matter of fairness given the assets available to the parties
and the obligations of the parties such as child support, earning capacity
and prospects, etc.
Discussion: Agreements are governed by provisions of
Title 25 of the Alaska Statutes.
Statutes:
Alaska Statutes
Title 25. MARITAL AND DOMESTIC RELATIONS
Chapter 25.24. DIVORCE AND DISSOLUTION OF MARRIAGE
Dissolution of marriage:
(a) A husband and wife together may petition the
superior court for the dissolution of their marriage under AS 25.24.200
- 25.24.260 if the following conditions exist at the time of filing the
petition:
(1) incompatibility of temperament has caused the irremediable
breakdown of the marriage;
...
(3) the spouses have agreed as to the distribution of all real
and personal property that is jointly owned or community property under
AS 34.77, including retirement benefits and the payment of spousal maintenance,
if any, and the tax consequences resulting from these payments; the agreement
must be fair and just and take into consideration the factors listed in
AS 25.24.160 (a)(2) and (4) so that the economic effect of dissolution
is fairly allocated; and (4) the spouses have agreed as to the payment of all unpaid obligations
incurred by either or both of them and as to payment of obligations incurred
jointly in the future...Sec. 25.24.200.
Petition for dissolution:
...
(e) If the petition is filed by both spouses under AS 25.24.200
(a)[dissolution of marriage], the petition must state in detail the terms
of the agreement between the spouses concerning the custody of children,
child support in terms of periodic payments and in terms of health care
expenses, visitation, spousal maintenance and tax consequences, if any,
and fair and just division of property, including retirement benefits.
Agreements on spousal maintenance and property division must fairly allocate
the economic effect of dissolution and take into consideration the factors
listed in AS 25.24.160 (a)(2) and (4)...
(10) that the petition constitutes the entire agreement
between the petitioners; and...Sec. 25.24.210.
Hearing:
(d) If the petition is filed by both spouses under AS 25.24.200
(a)[dissolution of marriage], the court shall examine the petitioners or
petitioner present and consider whether
...
(2) the written agreements between the spouses concerning
child custody, child support, and visitation are just as between the spouses
and in the best interests of the children of the marriage; in determining
whether the parents' agreement on visitation is in the best interests of
the children under this paragraph, the court shall also consider whether
the agreement should include visitation by grandparents and other persons;
(3) the written agreements between the spouses relating to the
division of property, including retirement benefits, spousal maintenance,
and the allocation of obligations are just; the spousal maintenance and
division of property must fairly allocate the economic effect of dissolution
and take into consideration the factors listed in AS 25.24.160 (a)(2) and
(4);
(4) the written agreements constitute the entire agreement between
the parties; and...
(g) The court may amend the written agreements between the spouses
relating to child custody, child support, visitation, division of the property,
including retirement benefits, spousal maintenance, and allocation of obligations,
but only if both petitioners concur in the amendment in writing or on the
record.(h) In its examination of a petitioner under (d) of this section,
the court shall use a heightened level of scrutiny of agreements if...
(3) there is a minor child of the marriage; or (4) there is a patently inequitable division of the marital estate.
(i) If the court finds that a higher level of scrutiny is required
by (h) of this section, the court shall examine the written agreements
between the spouses to determine that they are just, that they constitute
the entire agreement between the parties, and that the agreements concerning
child custody, child support, and visitation are in the best interest of
the children of the marriage, if any. The court shall require the presence
of both spouses at a hearing for this purpose unless the court finds on
the record that it would constitute a significant hardship on one of the
spouses to appear and that a just agreement has been reached. If one of
the spouses cannot attend the hearing because it would constitute a significant
hardship, the court may require that spouse to be available by telephone
to answer questions, at that spouse's expense. Sec. 25.24.220.
Judgment:
(a) If the petition is filed under AS 25.24.200 (a), and
is not subject to AS 25.24.220 (h), the court may grant the spouses a final
decree of dissolution and shall order other relief as provided in this
section if the court, upon consideration of the information contained in
the petition and the testimony of the spouse or spouses at the hearing,
finds that
(1) the spouses understand fully the nature and consequences
of their action;
(2) the written agreements between the spouses concerning spousal
maintenance and tax consequences, if any, division of property, including
retirement benefits, and allocation of obligations are fair and just
and constitute the entire agreement between the parties;
(3) the spousal maintenance and division of property fairly allocate
the economic effect of dissolution and take into consideration the factors
listed in AS 25.24.160 (a)(2) and (4);
(4) each spouse entered into the agreement voluntarily and free
from the coercion of another person; and
(5) the conditions in AS 25.24.200 (a) have been met.
(b) If the petition is filed under AS 25.24.200 (a) and is subject
to AS 25.24.220 (h), the court may grant the spouses a final decree of
dissolution and shall order other relief as provided in this section if
the court, upon consideration of the information contained in the petition
and the testimony of the spouse or spouses at the hearing, finds that
(1) the spouses understand fully the nature and consequences
of their action;
(2) the written agreements between the spouses concerning child
custody, child support, and visitation are in the best interest of the
children of the marriage, constitute the entire agreement of the parties
on child custody, child support, and visitation, and, as between the spouses,
are just;
(3) the written agreements between the spouses concerning spousal
maintenance and tax consequences, if any, division of property, including
retirement benefits, and allocation of obligations are just and constitute
the entire agreement between the parties;
(4) the spousal maintenance and division of property fairly allocate
the economic effect of dissolution and take into consideration the factors
listed in AS 25.24.160 (a)(2) and (4);
(5) each spouse entered the agreement voluntarily and free from
the coercion of another person; and
(6) the conditions in AS 25.24.200 (a) have been met.
(c) If the petition is filed by one spouse under AS 25.24.200 (b),
the court may grant the spouse a final decree of dissolution and change
the petitioner's name, if so requested, if the court, upon consideration
of affidavits supplied by the spouse and the testimony of the spouse at
the hearing, finds that
(1) the spouse present at the hearing understands fully
the nature and consequences of the action;
(2) the conditions in AS 25.24.200 (b) have been met; and
(3) the requirements of AS 25.24.165 (b) have been satisfied, if
a change of name is requested.
(d) The court shall dismiss a petition or continue action on a petition
filed under AS 25.24.200 - 25.24.260 before findings are made if
(1) a representative of the unmarried children who are
under the age of 19 objects to a term of an agreement between the spouses;
(2) either of the spouses withdraws from an agreement required
under AS 25.24.200 (a); or
(3) the petition alleges that the conditions in AS 25.24.200 (b)
exist, but the whereabouts of the absent spouse becomes known to the other
spouse or the court before findings are made.
(e) The court shall deny the relief sought in a petition filed under
AS 25.24.200 - 25.24.260 if the court does not make the findings required
under (a) - (c) of this section.
(f) If the petition is filed by both spouses under AS 25.24.200
(a), the court shall change either spouse's name, if the spouse seeking
a change of name to a name other than a prior name complies with AS 25.24.165(b),
and shall fully and specifically set out in the decree the written agreements
of the spouses and shall order the performance of those written agreements.
The court shall also state, in the decree, whether child support payments
are to be made through the child support enforcement agency. If the petition
is filed by one spouse under AS 25.24.200(b), the decree must state that
it does not bar future action on the issues not resolved in the decree.
Sec. 25.24.230.
Case Law:
It is still the case that "`[s]tipulations and settlements are favored
in law because they simplify, shorten and settle litigation without taking
up valuable court resources,'" and that this principle applies in the context
of divorce property settlements. Murphy v. Murphy, 812 P.2d 960
(Alaska 1991)(quoting
Interior Credit Bureau, Inc. v. Bussing, 559
P.2d 104, 106 (Alaska 1977). It also remains the case that divorce property
settlements do not receive the same statutorily-mandated level of heightened
scrutiny that dissolution property agreements receive. It is equally the
case, however, that even under the more relaxed scrutiny afforded property
settlements in divorce actions, courts need not accept property settlements
as controlling when the facts indicate that an agreement was not made with
full understanding. Kerslake v. Kerslake, 609 P.2d 559 (Alaska
1980).
A property settlement incorporated into a divorce decree is merged
into the decree, so that the rights of the parties derive from the decree,
not the agreement. O'Link v. O'Link, 632 P.2d 225, 228 (Alaska
1981). If the divorce decree incorporates the property settlement
agreement, the property division is a final judgment. O'Link v.
O'Link, 632 P.2d 225, 228 (Alaska 1981).
There are four factors that may constitute extraordinary circumstances
sufficient to set aside a property division in a final divorce decree under
Rule 60(b)(6): (1) the fundamental, underlying assumption of the dissolution
agreement had been destroyed; (2) the parties' property division was poorly
thought out; (3) the property division was reached without the benefit
of counsel; and (4) the [property in dispute] was the parties principal
asset." Schofield v. Schofield, 777 P.2d 197, 202 (Alaska
1989). Because these factors merely serve as equitable factors for
the court to consider, each factor need not be present in order for the
court to properly grant Rule 60(b)(6) relief.
Clausen v. Clausen,
831 P.2d 1257, 1260-61(Alaska 1992).
Principles of contract law are not applicable in an attempt to obtain
relief from a final judgment [when the final judgment comprises] the terms
of a property settlement incorporated into a divorce decree. Stone v.
Stone, 647 P.2d 582, 584 (Alaska 1982). But, basic contract interpretation principles to the interpretation
of a property division agreement incorporated into a divorce decree. Keffer
v. Keffer, 852 P.2d 394, 397 (Alaska 1993).
[W]here a support provision is an integral part of the property
settlement, Alaska courts generally hold that the support provision is
not subject to later modification. Keffer v. Keffer, 852 P.2d 394,
397 (Alaska 1993). The primary question is whether the payments provided
for were integrated into the property settlement or are part of a separable
provision. Alimony payments are integrated into the property settlement
when they constitute part of the consideration given for other property
benefits. Keffer v. Keffer, 852 P.2d 394, 399(Alaska 1993).
"Integration" is grounded on the theory that spousal support was, at least
in part, negotiated as a "trade off" for other property benefits. Where
a party receives alimony in exchange for claims on other property, it would
be unjust to modify the alimony while leaving the remaining property distribution
untouched.
