How do I divorce my husband who I have not talked to in 5 years?
Full Question:
I left my husband in the summer of 1994. I have tried a couple of times to get dissolution papers signed by him but he has refused. The last time I spoke to him was 5 years ago. How do I get legally unmarried, through dissolution or divorce, without having him sign. I am not asking anything of him, no alimony, no retirement, nothing just to be free. He is retired military, has a home and a job.
12/18/2008 |
Category: Divorce |
State: Alaska |
#14831
Answer:
Alaska permits "no-fault" divorces, or dissolution of marriage, on the grounds of incompatibility of temperament which has caused the irremediable breakdown of the marriage. The petition must include detailed provisions regarding custody and child support, visitation, alimony and division of property. Either of the parties may separately file for dissolution of marriage if incompatibility of temperament has cause the irremediable breakdown of the marriage; the petitioning spouse is unable to determine the other spouse's position regarding dissolution of the marriage, division of property, alimony, payment of debts, custody, child support, etc; or the other spouse cannot be served with process inside or outside the state.
25.24.050. Grounds for divorce.
A divorce may be granted for any of the following grounds:
(1) failure to consummate the marriage at the time of the marriage and
continuing at the commencement of the action;
(2) adultery;
(3) conviction of a felony;
(4) wilful desertion for a period of one year;
(5) either
(A) cruel and inhuman treatment calculated to impair health or endanger
life;
(B) personal indignities rendering life burdensome; or
(C) incompatibility of temperament;
(6) habitual gross drunkenness contracted since marriage and continuing
for one year prior to the commencement of the action;
(7) [Repealed, Sec. 68 ch 127 SLA 1974].
(8) incurable mental illness when the spouse has been confined to an
institution for a period of at least 18 months immediately preceding the
commencement of the action; the status as to the support and maintenance of
the mentally ill person is not altered in any way by the granting of the
divorce;
(9) addiction of either party, subsequent to the marriage, to the
habitual use of opium, morphine, cocaine, or a similar drug.
25.24.200. 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;
(2) if there are unmarried children of the marriage under the age of 19
or the wife is pregnant, and the spouses have agreed on which spouse or
third party is to be awarded custody of each minor child of the marriage
and the extent of visitation, including visitation by grandparents and
other persons if in the child's best interests, and support to be provided
on the children's behalf, whether the payments are to be made through the
child support services agency and the tax consequences of that agreement;
(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.
(b) A husband or wife may separately petition for 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, as evidenced by extended absence or
otherwise, has caused the irremediable breakdown of the marriage;
(2) the petitioning spouse has been unable to ascertain the other
spouse's position in regard to the dissolution of their marriage and in
regard to the fair and just division of property, including retirement
benefits, spousal maintenance, payment of debts, and custody, support and
visitation because the whereabouts of the other spouse is unknown to the
petitioning spouse after reasonable efforts have been made to locate the
absent spouse; and
(3) the other spouse cannot be personally served with process inside or
outside the state.
(c) Except as provided in AS 25.24.220 (i), a spouse who has been
personally served with a copy of a petition filed under (a) of this
section may execute an appearance, waiver of time to answer, and waiver
of notice of hearing. The appearance and waivers must include an
acknowledgment signed before an officer authorized to administer an oath
or affirmation that the spouse being served has read the petition;
assents to the terms relating to custody of the children, child support,
visitation, spousal maintenance taking into consideration the factors
listed in AS 25.24.160 (a)(2), and tax consequences, division of
property, including retirement benefits and taking into consideration the
factors listed in AS 25.24.160 (a)(4), and allocation of debts; agrees
that the conditions otherwise required by (a) of this section exist;
agrees that the petition constitutes the entire agreement between the
parties; understands fully the nature and consequences of the action; and
is not signing the appearance and waivers under duress or coercion.
(d) The action created under this section is separate from the action
created by AS 25.24.010. The procedures prescribed by AS 25.24.200 —
25.24.260 do not apply to an action brought under AS 25.24.010, nor do
procedures prescribed under AS 25.24.010 — 25.24.180 apply to an action
filed under this section, except as specifically provided.
(e) Spousal maintenance and a 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).
25.24.210. Petition for dissolution.
(a) The caption in a petition for dissolution of marriage under AS
25.24.200 — 25.24.260 shall be styled substantially "In the Matter of the
Dissolution of the Marriage of ________________ and ________________."
(b) The petition shall be filed with the superior court and shall either
(1) recite that the conditions enumerated under AS 25.24.200 (a) exist
and shall be signed and verified by both of the petitioners or by one
petitioner, if that petitioner personally serves the petition on the other
spouse in accordance with the Alaska Rules of Civil Procedure in
anticipation that the spouse will comply with AS 25.24.200 (c); or
(2) recite that the conditions enumerated under AS 25.24.200 (b) exist and
be signed and verified by one of the petitioners.
(c) The petition shall state that the spouse or spouses executing the
petition consent to the jurisdiction of the court.
(d) The petition shall request that the marriage be dissolved and that
the name of a spouse be changed, if desired by that spouse.
(e) If the petition is filed by both spouses under AS 25.24.200 (a), 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). In addition, the petition must state
(1) the respective occupations of the petitioners;
(2) the income, assets, and liabilities of the respective petitioners at
the time of filing the petition;
(3) the date and place of the marriage;
(4) the name, date of birth, and current marital, educational, and
custodial status of each child born of the marriage or adopted by the
petitioners who is under the age of 19;
(5) whether the wife is pregnant;
(6) whether either petitioner requires medical care or treatment;
(7) whether any of the following has been issued or filed during the
marriage by or regarding either spouse as defendant, participant, or
respondent:
(A) a criminal charge of a crime involving domestic violence;
(B) a protective order under AS 18.66.100 — 18.66.180;
(C) injunctive relief under former AS 25.35.010 or 25.35.020; or
(D) a protective order issued in another jurisdiction and filed with the
court in this state under AS 18.66.140;
(8) whether either petitioner has received the advice of legal counsel
regarding a divorce or dissolution;
(9) other facts and circumstances that the petitioners believe should be
considered;
(10) that the petition constitutes the entire agreement between the
petitioners; and
(11) any other relief sought by the petitioners.
(f) A petition filed under this section must include or be accompanied by
a record of the social security numbers, if ascertainable, of the following
persons:
(1) both spouses to the marriage being dissolved;
(2) each child whose rights are being addressed in the petition for
dissolution.
25.24.220. Hearing.
(a) After a petition for dissolution is filed under the provisions of AS
25.24.210, a hearing shall be scheduled in accordance with the Alaska Rules
of Civil Procedure.
(b) Except as provided in (i) of this section, if the petition is filed
by both spouses under AS 25.24.200 (a), both spouses shall attend the
hearing personally and not through counsel. However, if the petition is not
subject to (i) of this section, a spouse who complies with AS 25.24.200 (c)
is not required to attend the hearing. Either spouse may have counsel at
the hearing.
(c) If the petition is filed by one spouse under AS 25.24.200 (b), that
spouse shall submit proof of diligent inquiry as to the whereabouts of the
absent spouse and provide notice by publication, posting, or other means as
ordered by the court under the Alaska Rules of Civil Procedure.
(d) If the petition is filed by both spouses under AS 25.24.200 (a), the
court shall examine the petitioners or petitioner present and consider
whether
(1) the spouses fully understand the nature and consequences of their
action;
(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
(5) the conditions in AS 25.24.200 (a) have been met.
(e) If the petition is filed by one spouse under AS 25.24.200 (b), the
court shall examine the petitioner and consider whether the petitioner
fully understands the nature and consequences of the action and whether the
conditions in AS 25.24.200 (b) have been met.
(f) The court may appoint a guardian ad litem to represent the best
interests of the child. Appointment of a guardian ad litem or attorney for
the child shall be made under the terms of AS 25.24.310.
(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
(1) one party is represented by counsel and the other is not;
(2) there is evidence that a party committed a crime involving domestic
violence during the marriage or if any of the following has been issued or
filed during the marriage by or regarding either spouse as defendant,
participant, or respondent:
(A) a criminal charge of a crime involving domestic violence;
(B) a protective order under AS 18.66.100 — 18.66.180;
(C) injunctive relief under former AS 25.35.010 or 25.35.020; or
(D) a protective order issued in another jurisdiction and filed with the
court in this state under AS 18.66.140;
(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.
25.24.230. 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); orckquote>(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 services 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.
(g) Notwithstanding other provisions of AS 25.24.200 — 25.24.260, the
court may not award to one spouse real or personal property acquired by the
other spouse before the date of the marriage, unless the spouses expressly
agree otherwise or the court determines that the property should be made
available, by sale or other conveyance, to ensure that the best interests
of the children are provided for. If the court determines that the best
interests of the children require an award of premarital property, but the
spouses do not agree, the court shall dismiss or continue the action.
(h) If a judgment under this section distributes benefits to an alternate
payee under AS 14.25, AS 21.51.120 (a), AS 21.54.020 (c), 21.54.050 (c), AS
22.25, AS 26.05.222 — 26.05.226, or AS 39.35, the judgment must meet the
requirements of a qualified domestic relations order under the definition
of that phrase that is applicable to those provisions.(i) For each judgment issued under this section, the court shall include
in the records relating to the matter the social security numbers, if
ascertainable, of the following persons:
(1) each party to the dissolution of marriage;(2) each child whose rights are addressed in the judgment.
