Alaska Divorce Lawyer & Attorney : Peg Roston Law Firm : Property Division, Net Worth, Division of Assets : Anchorage, Alaska

Going through a divorce is emotionally challenging if not downright unpleasant. Therefore, it is not surprising that a person going through a divorce wants the case to be over as fast as possible. Unfortunately, going to trial is generally not the way to get a speedy resolution of a divorce case because so many divorce cases get delayed for some of the following reasons:

1. No matter how set in stone a trial date appears to be, at least in Superior Court in Anchorage, if an emergency children’s proceeding is filed, it trumps the divorce trial, which means then the judge assigned to the divorce case, has to reschedule for a later date.

2. Even if a trial starts on the scheduled date, it is not unusual for there to be delays in the middle of a trial because of court matters over which the trial judge does not have any control over such as emergency children’s hearings. Therefore, it is not uncommon for a case to be tried a day here and a day there over a course of several weeks and in rare cases over the course of several months.

3. Judges do not usually make a decision at the conclusion of a trial. They take the matter under advisement. It is not unusual for the judge to take four to six months before he/she issues a written decision.

4. Once the judge issues a written decision, each side has the right to file an appeal to the Alaska Supreme Court. Although this generally does not affect the finality of the judge’s decision, the appellate process can take two years. If the Alaska Supreme Court reverses the trial court’s decision, the case is usually sent back to the trial judge for further court proceedings.

Because delay is one of the risks of going to trial, settling a case through mediation or a settlement conference with a judge is certainly an attractive alternative to spending months and possibly years embroiled in divorce litigation.  The day you settle you can begin to look forward to the rest of your life.  Why wait?

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When people who are married or living together have children, their religion, family traditions, personal parenting philosophies, and other factors guide them in making decisions about how to raise their children.

But when parents divorce or end their relationship, they become subject to the child custody laws of this state. Child custody includes both legal custody and physical custody.

Legal custody is the authority to make decisions on non-emergency medical care, religion, education, and emancipation. Parents can have joint legal custody or one parent can have sole legal custody.

Physical custody involves the amount of time the children will spend with each parent. Parents can share physical custody of the children. Alternatively, one parent can have primary physical custody in which case the other parent who is referred to as the "non-custodial parent"  has visitation with the children. 

Each parent has an independent relationship with the children and is entitled to enjoy that relationship without interference by the other parent. Generally speaking, this means that even the non-custodial parent is in charge of the day-to-day routine and activities in the home when the children are spending time with that parent.

If you are facing the challenges of divorce or ending a relationship, you can elect to attempt to negotiate child custody with the other parent. If the two of you together or with the help of attorney or other professional cannot agree on child custody, then the only alternative is to let a superior court judge decide child custody for you. No matter which road you choose to take, you may want to consider these factors: (1) the importance of having both parents involved in the lives of their children; (2) the importance of shielding children from conflict between parents; and (3) the importance of creating a post-divorce environment, which allows children to focus on their emotional and development needs without the disruption of ongoing custody battles.

You would be wise to consult an Alaskan attorney who can educate you about the factors a judge must consider in deciding contested child custody cases and who can advise you if you have concerns about substance abuse, domestic violence or mental health issues.

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Since 1996, the law in Alaska has been that the Exxon Valdez claims for punitive damages are marital property to the extent that the claims for compensatory damages are marital property. Lundquist v. Lundquist, 923 P.2d 42, 51 (Alaska 1996). However, as the Alaska Supreme Court commented in 2000: “[I]t is not known how much will be collected or even if the plaintiffs will ever actually collect this award.” Edelman v. Edelman, 3 P.3d 348, 355 (Alaska 2000).

At the time of Edelman, the punitive damages award was $4.786 billion dollars. Id. But Exxon had appealed the award to the Ninth Circuit Court of Appeals. Id.

Yesterday, the United States Supreme Court slashed the punitive damages award from $2.5 billion dollars to $500 million dollars. The Alabama Appellate Watch has a well-written succinct summary of the Exxon Shipping Co. v. Baker decision:

Justice Souter authored the 5-3 majority opinion. In his opinion, Justice Souter found that this was a maritime case, and thus decided under the federal common law and not due process principles. Justice Souter discussed at length the different punitive damage standards used by various states, and discussed the general purposes of punitive damages. Interestingly, Justice Souter notes that "by most accounts the median ratio of punitive to compensatory awards has remained less than 1:1." Slip Op. p. 24-25.

Justice Souter also examined three various methods used to review punitive damages: (1) verbal tests (using criteria such as "shock the conscience" or "passion and prejudice"); (2) dollar caps; and (3) ratios.

In the end, Justice Souter found the ratio test most appropriate. Under the facts of this case, where no malicious intent was found or behavior driven primarily for gain, and with a substantial compensatory award, a 1:1 ratio was appropriate. Thus, the award was reduced to the amount of the compensatory award, which is approximately $500 million.

I recommend that any visitor to this post who has been involved with the Exxon case and has a final judgment, is in the middle of a divorce, or is contemplating a divorce contact their divorce attorney to discuss the impact of this decision on them. 

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In my last post I offered some steps parents could take to prevent their children from feeling caught in the middle of a divorce. In response to this post, I received a comment from Steven, who raised several insightful issues:

 In response to my suggestion that parents should not “grill” their children, Steven commented:

Doesn't this vary depending on the circumstances?  If there is a good chance of abuse at the other parent's home, having the kid discuss it directly with the other parent may not work well.

Steven is absolutely correct on this point.  If your child tells you the other parent has been physically abusive, you should contact your attorney immediately if you have an attorney.  Otherwise, you should contact The Alaska Network On Domestic Violence And Sexual Assault, which has resources for victims of domestic violence.  Your number one priority should be the safety of your child.

In response to my suggestion that parents should not show children copies of the divorce paperwork, Steven commented:

It seems that the age of the child is also important.  What is the reasoning behind not showing the children the divorce paperwork?  This is probably the most important document affecting the kids' lives and they can't see it? Even if they are 15? 

If parents are fighting over the custody of their children, there may be psychological evaluations, affidavits, or a custody investigator’s report to the court about the placement of the children.  Affidavits, which are drafted by attorneys, frequently contain stinging barbs and accusations.  Psychological evaluations and custody reports may include sensitive information about parents, which if revealed could damage the parent-child relationship.  Finally, in a contested custody case, one of the factors the court must consider is the preference of the child.  To have a parent go through court documents with a child who has expressed a preference to a psychologist or custody investigator to live with the other parent creates a stressful and potentially emotionally damaging situation for the child.

Even if the parents are only fighting about property, the court documents may still reflect ongoing hostility between the parents.  Showing children these court documents does nothing to further the emotional well being of the children.

Finally, parents may have reached an agreement on the division of their property, the custody of the children and child support.  It is certainly reasonable to create a calendar, which shows the custody schedule so that parents and children can plan their activities.  But the actual court documents usually address not only the custody schedule but also the parties’ financial agreements, including how the parents are going to share uncovered medical expenses and how child support is going to be calculated.  The decision to share information about the parents’ financial obligations to each other should be made jointly by the parties.  If one parent unilaterally decides to share this information with the children, that parent may have an agenda, which has nothing to do with the children’s best interests.

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A divorce will have a direct impact on your children’s emotional health and well-being even after the decree has been signed and you and your ex-spouse have moved on with your lives. Here are a few steps you can take to prevent your children from feeling caught in the middle of the divorce.

• Do not use the children to deliver messages to the other parent.
  
• If you pay child support, do not give your child support check to one of your children to deliver to the other parent.
  
• Do not discuss how much support you are paying or receiving with your children.
  
• Do not grill the children for information about what is going on in the other parent’s home. Your children may want to talk about their life at the other parent’s home. If they initiate a conversation about the other parent, it is best to listen thoughtfully. If they bring up an issue they are having at the other home, suggest they discuss the issue directly with the other parent.
  
• Do not show the children copies of divorce paperwork or discuss the case with them even if the case is over.
  
• Do not do make comments to the children, which suggest they are not safe at the other parent’s home. If there has been domestic violence in the family, you should disclose this to your attorney at the beginning of the case.
  
• Do not attempt to influence the children’s preference by offering them incentives such as cell phones if they come to live at your house. In short, do not offer bribes to your children.
  
• Do not disparage the other parent to your children. Disparagement can be overt. It can also be quite subtle. For example, disparagement can take the form of negative body language or facial expressions while you are talking on the phone to the other parent even if the content of your conversation is neutral.
   

If you follow these suggestions, you will be making an important contribution to your children’s long-term emotional health and self-esteem:

Remember that children who have strong loving relationships with both their mother and father grow up the healthiest. Absent some very unusual facts, every parent has the responsibility to help their children to have positive feelings about both their mother and father. Your child’s emotional development needs to be priority number one.

Robert L. Mues, Father’s Day Reflections, Including Freud and Tongue Biting, The Ohio Family Law Blog June 15, 2008.

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Back child support is a frequent problem in a divorce case particularly if there is a gap between the date a couple separates and the date one of the spouse's files for divorce.

According to a concise, well-written June 2, 2008 post on Attorney Robert Mue's Ohio Family Law Blog, the IRS is treating the federal economic stimulus payment as a tax refund.  If you owe back child support, the IRS will apply the payment to the amount you owe.  So you may receive a smaller payment or no payment at all.  Quoting Attorney Mue's commentary, the New Hampshire Family Law Blog writes:

So what do you do if you and your spouse have filed a joint return and your spouse owes back child support if you want to avoid having the IRS seize your share? Well, you may fall in the category of what the IRS calls an “injured spouse”. To get your share of the stimulus payment, you can file Form 8379, Injured Spouse Allocation. You will then get your share of these payments, and your spouse’s share will be applied to his or her past-due federal or state income taxes or non-tax federal debt such as student loans and child support.

This is something you should take up with your tax-preparer or divorce attorney if you are concerned that your economic stimulus payment may be seized to pay back child support.

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Most of the posts on this blog will offer practical information and tips about the divorce process in Alaska.  They will also contain basic information about the law, which guides lawyers in advising their clients about property, support, and custody issues.  However, for those readers who are interested in learning a little about the history of divorce, I suggest reading the LegalExpert's article published at AnswerBag.com. This article speeds through the history of divorce from the Roman empire through the modern no-fault approach to divorce.  The no-fault approach has been adopted in Alaska.  It allows a spouse to obtain a divorce by filing a divorce complaint, which alleges an incompatibility of temperament.  It eliminates the requirement that a spouse prove fault-based grounds for divorce such as mental cruelty or abandonment. I happened to find this article while searching for definitions of divorce-related legal terms to add to the written information I give to new clients.

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