Alaska

Part of Real World Divorce: web edition | Kindle edition

Pam Sullivan is a partner at Wade, Kelly & Sullivan (wkslegal.com), one of Alaska's leading firms for gritty cases, e.g., divorce, custody, personal injury, and criminal.  Based in Anchorage, Sullivan has been practicing law in Alaska for 20 years, handling divorces for 13 of those years.

Due to her experience with criminal matters, Sullivan has handled far more trials than a typical divorce litigator and works 3-4 divorce trials into her calendar each year though "the vast majority settle." Sullivan's work in criminal law combined with the everyday strangeness of life in Alaska results in some unusual clients. Here are excerpts from a 2003 article in the Anchorage Daily News:

A grand jury has indicted Big Lake pastor Phillip Mielke on two counts of manslaughter and two counts of criminally negligent homicide. Mielke, 44, shot and killed two men he caught burglarizing a basement food cache in the Big Lake Community Chapel in the pre-dawn dark of April 24. Chris Palmer, 31, was found dead outside the church; Frank Jones, 23, died about seven hours later at a friend's home.

Mielke shot both men in the back, according to papers filed by the Palmer district attorney with the indictment in Superior Court here Thursday. The indictment was issued Wednesday and made public Thursday.

Mielke told investigators he emptied his .44 Magnum shooting at Jones through a window as he fled the chapel, the document says. Troopers recovered the pastor's six-shot double-action revolver -- containing six spent casings -- in the church, the memo says. The troopers also recovered a loaded .357 Magnum revolver in the basement on top of a water heater. The memo did not say whom the gun belonged to. Mielke's wife, Helen, answered the phone at the chapel Thursday morning and referred all questions to attorneys, Jerry Wade and Pamela Sullivan.

[Reverend Mielke was ultimately acquitted.]

Returning to family law, Sullivan handles a 50/50 mix of male and female clients in cases where "generally the female is the plaintiff; at least 60 percent of the time." Sullivan charges $250 per hour in a town where the most expensive attorneys are no more than about $350 per hour. Litigation is cheap compared to other states, with an expensive case consuming no more than $150,000 in fees for lawyers and experts on both sides all the way through trial and a typical one coming in at less than $100,000. Are Alaskans simply more agreeable and efficient than people in other states? "We have a 50/50 joint custody presumption. The child support cap here means that there is not a lot of money in children. Spousal support [alimony] is heavily disfavored. There just isn't as much at stake as in some other states."

What motivates divorce in Alaska? "Realistically most plaintiffs are trying to make themselves better off," says Sullivan. "They're not doing it for the sake of their children. A lawsuit is more likely with a disparity of income, and the higher the defendant's income the more likely there will be a lawsuit."

Courts in Alaska handle divorces very differently than in most other jurisdictions. Instead of a dedicated family court with judges drawn from the family law bar, divorces in Alaska are handled by Superior Court judges that deal with a wide range of civil matters. A judge could have been hearing a $5 million contract case the week before a divorce trial, though, as in other states there is no right to a jury trial when defending a divorce lawsuit. Custody cases have an automatic right of appeal to the Alaska Supreme Court. Sullivan speaks very highly of the Superior Court judges: "There is only 1 out of 17 that I would say has a gender bias and that's John Suddock. Particularly if you are a military man!" Does that mean that 1 in 17 men who are embroiled in divorce litigation have a hopeless case? "No. In the first five days after a lawsuit is filed you have the right to get your case reassigned to another judge," says Sullivan.

As in other states, there is little practical right of appeal in Alaska. "The factual set of circumstances is reviewed by an abuse of discretion standard and that's a very hard standard to meet," says Sullivan.

As with California, child support in Alaska stops at age 18 unless a child is still in high school, but in any case by age 19 and courts cannot order a parent to pay for college. Child support can be calculated easily by lay citizens using forms at http://www.childsupport.alaska.gov/. Child support is straightforward in Alaska when one parent has primary custody: 20 percent of a payor's income for one child, 27 percent for two children, 33 percent for three children, an additional 3 percent for each additional child. This sounds similar to New York, but Alaska uses after-tax income. (A New York payor must pay similar percentages on pre-tax income. Given New York's highest-in-the-nation income tax rates the result can be that a parent with multiple child support obligations has his or her spending ability reduced below federal poverty levels.)

Alaska has a cap of $120,000 of after-tax income that may be considered for child support purposes. Rule 90.3 says that "(2) Paragraph (a) does not apply to the extent that the parent has an adjusted annual income of over $120,000. In such a case, the court may make an additional award only if it is just and proper, taking into account the needs of the children, the standard of living of the children and the extent to which that standard should reflect the supporting parent's ability to pay." So in theory a plaintiff could say "My child has been accustomed to living in a $2 million house, riding polo ponies, and flying on chartered Gulfstreams." Sullivan has not seen this in real cases, however, and the result of this cap is that it is difficult to get more than $24,000 per year in child support for a single child.

Shared physical custody will result in a reduction in child support payments and also makes it more difficult for a parent to win a removal action (see below). The definition of "shared custody" is between 30 and 70 percent time with one parent. I.e., what a lot of other states would consider "primary" or "sole physical" custody is considered "shared" in Alaska.

A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is valid in Alaska. However, the courts are "moderately sympathetic" to invalidating prenuptial agreements, according to Sullivan. As in other states, the prenuptial agreement cannot bind a court regarding child support and custody.

State background

The average hourly wage in Alaska is $25.02 per hour. A person who goes to college at the University of Alaska, Anchorage will spend approximately $58,920 over four years to earn a bachelor's degree. Census 2014 data show that median income for a 22-36-year-old college-educated woman who works full time is $43,600 per year in Alaska or $35,910 after taxes. For a corresponding man it is $50,000 per year or $35,599 after taxes. Alaskans get to keep a higher percentage of their income than residents of any other state; the Tax Foundation says that Alaska collects 6.5 percent of income to run state and local government (compare to 11 percent in California or 12.7 percent in New York).

The average annual cost of child care is $9,336 for an infant, $8,856 for a four-year-old, and $4,404 for a school-age child. Thus the total cost of child care from age 0 through 12 is $54,488 in commercial settings or $47,888 in a family care setting.

For a man who goes to college and then works for 14 years, his total after-tax spending power would be approximately $450,000 (14 years of average earnings minus college outlays). For a woman who goes to college and then works for 14 years, the comparable number is $377,000.

Sullivan says that typically a court that orders child support will also order the payor to pay for day care or other commercial child care costs. Excluding child care, then, the USDA-estimated actual cost of providing for a child in a single-parent household is between $8,000 and $10,000 per year (average of $9,000 times 18 years of childhood = $162,000).

Due to the statutory cap of $24,000 per year on child support, unless a plaintiff can persuade a judge to go beyond this, there is no way that child support in Alaska can exceed the average working college graduate's income.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

"Cases like this are rare in Alaska. We're a pretty old-fashioned state in terms of gender roles. Men here are working men. They're up in Prudhoe Bay or fishing and earning well over $100,000 per year even without a college education. If only for practical reasons, due to the fact that the men might be gone for more than a week at a time, women often take on a traditional homemaker's role."

"The presumption is that parents will share custody as long as they are in the same community. That's just for practical reasons in terms of getting the kids to school. If the parents are both within a 20-minute drive of the school they could share custody. They would also probably get custody if they were farther apart as long as both were within the Anchorage city limits."

"If the father wants 50/50 custody he will get it. He will also get approximately $24,000 per year in child support since he has minimal income." Won't income be imputed to him by the judge? "Yes, depending on his education and what he has realistically been able to earn in the past. If he has been a deadbeat… excuse me, artist, for his whole life then it will be hard to prove an earning ability." Are there expert witnesses who testify regarding earning ability? "It is mostly attorney argument and then the judge will decide. Judges are reluctant to impute income beyond what has been established historically."

So the mother could save herself $24,000 per year as well as enjoy more time with the kids if she could obtain sole custody? "Yes." What would it take for her to overcome the statutory 50/50 presumption? "It would have been tough until about 7 years ago. Then a well-meaning legislator added a statutory exception. If a litigant can establish that she has been physically abused or the children have been sexually abused then she can obtain sole custody." Why does Sullivan say "she"? "I have never seen a man try this." How about women? "Either there has been an epidemic of abuse in Alaska since this statute was amended or a lot of women are lying. In about 25 percent of the cases now the man is alleged to be a physical or sexual abuser." What kind of evidence does a woman need to prove that she or her children were abused? "Nothing beyond her word. The judge is able to find that her own testimony is credible. However, there is a trend toward skepticism. Judges can't help but notice the increase in allegations of physical and sexual abuse."

What kind of property division would a court order? "Alaska is not a community property state. There is a case called Rose v. Rose that addresses short-term marriages (it was about 2 years and 6 months in Rose v. Rose). The parties should go back to their respective positions prior to marriage, like with a contract rescission. This is because it is easier to track who bought what when it is a short-term marriage."

Can the father collect alimony? "There is absolutely no chance of spousal support. He would be laughed out of the courtroom. Spousal support is reserved for long-term marriages where one person stays home and takes care of children and has become unemployable, e.g., age 55. And even then wouldn't be lifetime..

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

In New York a divorce litigant can blow up shared custody simply by saying "I prefer sole." In Massachusetts a divorce litigant can blow up shared custody by asserting the existence of "conflict." Sullivan says that in Alaska these might be arguments for sole legal custody but not for a deviation from 50/50 physical custody. In any case, before awarding sole legal custody the judge would probably lecture the parties regarding the need for them to grow up. Unlike in Washington, D.C., a judge would be unlikely to approve divided legal custody, e.g., with one parent making health care decisions and the other parent making decisions regarding education.

Due to the equal incomes and the 50/50 physical custody there would be no child support, no alimony, and an equal property division.

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

"If he is willing to adjust his work schedule, the father can get 50/50 custody. In reality, this guy probably won't want to adjust his work schedule and spend all of his time being a primary parent. Oftentimes the guys will say that they think it is the best interests of the children to stay with mom. Remember that we're not a state like California where money becomes a huge issue, so parents are able to think about what is best for their children."

If the father does agree that the children should live primarily with their mother, what kind of child support will he pay? "It would be 27 percent of $120,000 or $32,400. Additional costs such as health insurer will likely be the father's responsibility as well. Ordinarily costs are split equally but a party can present a rationale for deviation and the judges will typically come to something more equitable." Will these child support payments be supplemented by alimony? "I would certainly ask for it. I would ask for 7 years and probably get 4 years of spousal support, designed to be rehabilitative. This would get her through a master's degree."

Is there a formula for alimony? "No. It is up to the judge. Typically the party requesting spousal support presents the judge with a plan showing what her reasonable monthly expenses would be and what graduate school would cost." What kind of cases generate more alimony? "A friend just represented a physician making $750,000 per year and the judge ordered more than $120,000 per year in alimony to a non-working wife after a 25-year marriage. But even then it won't be lifetime alimony as in some states."

How about property division? "There is a presumption that assets and debts are split equally if parents are otherwise equal, e.g., in terms of the ability to make an income, health, etc. In this case it might be a 60/40 property division in favor of the woman due to her lower earning ability." In New York his medical degree would be valued and then divided by the court, according to our interview there. "Conceivably his medical degree could be valued but that argument usually doesn't usually work. However, a law firm partnership or a share in another business could be. Simply having the ability to earn a high income isn't enough to generate a property division claim."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Would the courts really be guided by the 50/50 custody presumption with a child this young? "Absolutely. We say the child should have both of her parents."

Property division and alimony? "Rose v. Rose will put her back to where she was financially. She cannot get the $2 million in pre-marital savings. Pre-marital assets can be used to achieve a division of property if there is no other way to do it, but it isn't common. She won't get spousal support."

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

"I've seen a bunch of cases like this," says Sullivan. "It is usually a military guy who goes crazy after a hippie."

Would a court order 50/50 custody of a breastfeeding newborn? "Absolutely they would. The tender years doctrine has been abolished conclusively by the Alaska Supreme Court."

What kind of child support will the mother get? "It will be close to $24,000 per year whether it is 50/50 or sole custody."

What if she gets married at 25 to a man earning $100,000 per year? "Her new husband's income won't be considered, even if he were earning $10 million per year. Child support calculations will always be based on her income. If there is a 15 percent change in her income that would presumptively change child support, but marriage to a wealthy person does not."

What if she has two more children with two more fathers? "She can get up to 60 percent of $120,000 by having three children with three fathers, but only 31 percent of $120,000 by having three children with the same father."

How about the man? If he keeps going to music festivals and getting women pregnant? "Child support from an existing court order is deductible from income used to calculate a new child support order. So unless the father's income is very high and all calculations result in using the cap, the first woman to sue will get the most money, the second woman will get less, and the third will get even less." Doesn't that mean effectively that the government is assigning different cash values to different children of the same father? "Yes." Is there any rationale for that? "Not that I know of. One would think that it would be equalized."

Could the mother in this scenario fly her pregnant self to California and child support action there in order to get around Alaska's child support income cap? "Absolutely." What if the father tried to get the case handled by an Alaska judge instead? Would a federal court be tasked with determining jurisdiction? "Alaska is one of the 49 states that is part of the Uniform Child Custody Jurisdiction and Enforcement Act. I think that in three different places it says that judges are supposed to call each other and talk about who has jurisdiction. Sometimes they do it in chambers and sometimes on the record. And they usually get along. In this particular case, the child would be born in California and has no ties to Alaska so the jurisdiction would likely be in California. Remember that she cannot file a suit until the baby is born."

Removal

How easy is it for a parent to move out of state with a child? "The standard is purely 'best interest of the child.' It is much easier if you have primary physical custody." What happens if a parent succeeds in moving a child to Florida? "Typically the child would be sent back to the Alaska parent a week after the end of the school year and then returned one week before school starts. It is often economically impractical to give the noncustodial parent school vacation weeks due to the expense of flights."

Quirks

Alaska provides financial incentives for residents to have children with multiple partners. As noted above, the formula is "20 percent of a payor's income for one child, 27 percent for two children, 33 percent for three children." When suing defendants earning $120,000 per year after taxes, over an 18-year period therefore, three children with one co-parent will yield $712,800. Three children with three different co-parents will yield $1.3 million, i.e., nearly twice as lucrative.

Despite the trend toward 50/50 shared parenting in Alaska, Census data show that 83 percent of Alaskans collecting child support in the March 2014 Census sample were women (compare to 98 percent in Maryland, 97 percent in Massachusetts, and 94 percent in California).

Closing Thoughts

For parents who put their children first, what kind of parenting time arrangement does Sullivan think works best? "Children are adaptable. I suggest week-on/week-off 50/50 parenting. If the kids are little maybe add an evening get-together in the middle of the week."

Does Sullivan agree with the high-stakes New York litigator who criticized mediation due to the fact that in his experience people often gave up valuable rights? "Who could be anti-mediation? My job is not to create more acrimony between two parents who have to work together to raise this child for some years to come. Remember that it isn't just until age 18 anymore. Children these days may not leave the house until age 30. My job is to create a situation whereby these parents can have a livable co-parenting relationship. The last thing anybody needs is a divorce lawyer who makes things worse."

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