This guide is not intended to provide legal advice, but is provided to answer general questions and potential myths about divorce law in the State of Arkansas. If you have specific questions, you should consult with your attorney.
Marriage in the law is similar to a contract. There are limitations on who may marry, however once a marriage is created, the law imposes various obligations and liabilities upon the parties. Arkansas law confers marital capacity upon males over the age of 17 and females over the age of 16. Males and females under 18 must have the written consent of both parents unless one is deceased, or unless the parties are divorced.
Same-sex marriages are generally prohibited in Arkansas. Also, marriages between persons who are “too-closely related" are prohibited whether the relationship is by whole blood or half blood.
Common Law Marriage
Common law marriages have been abolished in most states, including Arkansas, however Arkansas will recognize a valid common law marriage from another state.
In 2001, the Arkansas legislature authorized “covenant marriages." This optional relationship is available to couples who receive authorized counseling; who agree to make reasonable efforts to preserve the marriage if difficulties should arise; who may seek a divorce only if there has been a complete and total breach of the marital covenants; and who accept more restrictive grounds for divorce. If you believe you entered into a covenant marriage, please let your attorney know.
An annulment is a determination by a Court that a marriage in invalid and thus never existed. Annulments are very difficult to obtain in Arkansas, and can be obtained under the following, limited circumstances:
(1) Bigamy or Polygamy;
(2) Consanguinity (Marrying someone to who he/she is related)
(4) Lack of Physical Capacity (Impotence)
(5) Lack of Understanding Necessary to Consent
(Fraud) (Force/Duress) (Mental Incompetence)
Arkansas is a grounds state for divorce. Parties must have a reason to obtain a divorce. Generally, there are five grounds for divorce:
(1) Eighteen (18) Months Continuous Separation
(2) Habitual Drunkenness For One Year
(3) Abuse - Physical, Emotional, Mental Abuse
(5) General and Personal Indignities
To obtain a divorce, a party must always offer proof of residence and that proof must be corroborated, typically by a witness. Evidence must be presented that either party has been a residence for sixty (60) days prior to commencement of the divorce action.
In addition, a party must provide proof that the reason for the divorce existed within five (5) years before the complaint was filed. This mean, if your husband or wife committed adultery six (6) years ago, those grounds for divorce has expired according to the statute.
Division of Property
Arkansas is a community property state, meaning all property acquired during the marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is deemed separate property.
Marital fault is generally not a factor in division of property. When a divorce decree is entered, all marital property shall be distributed one-half to each party unless the Court finds such a division to be inequitable.
There are other specific division of property issues that may arise depending on the specific circumstances of your case and property owned. If you have specific questions about division of property, please consult with an attorney.
Answering questions and providing a guide about child custody is a very case specific, detail oriented process. Generally, until a Court established temporary custody, each parent has equal rights to the children. Once a temporary order is established, one party will be the temporary custodial parent, and the other will be a non-custodial parent who will be entitled to visitation, and
will generally be required to pay child support. Generally, in Arkansas, a child must be fourteen (14) years of age before the Court will allow them to make a decision on where they desire to live. The Court will consider a child’s wishes before that age, but it will not be the determining factor until the age of 14. Even at 14, if the Court does not believe it is in the child’s best interest, the Court can still refuse to grant the child’s wishes.
Generally, for Arkansas to be the proper jurisdiction to establish child custody, Arkansas must be the children’s home state. To determine if Arkansas is the child’s home state, the Court will look at where the child was born and/or where the child has lived within the past six (6) months. If the child was born in Arkansas, and has not lived outside the state for more than six (6) months, Arkansas is the home state. If the child was born outside the state of Arkansas, but has lived in Arkansas for the past six (6) months, Arkansas could still be the child’s home state.
Regardless of the amount of time the parent has lived in the State of Arkansas, the children’s home state will determine where the parents can be divorced and where child custody can be established.
Generally, joint custody is not favored in Arkansas, however if both parties agree and the Court determines it is in the best interest of the children, the Court can approve a joint custody arrangement. If you are considering joint custody or have other questions about child custody, please make an appointment to discuss this will with an attorney.
The Arkansas Supreme Court periodically published the Arkansas Family Support Chart which is used by the Court to determine the amount of child support a non-custodial parent pays for the benefit of the children. In addition to the award of monetary support, the Court typically provides for the child’s health care needs, including insurance. The Arkansas Family Support Chart assumes that the custodial parent is employed, and it assumes that the non-custodial parent will have visitation every other weekend and for several weeks during the summer.
The Family Support Chart is the document used by the Court to establish child support. The parties can agree on a figure less than the figure on the support chart, or a figure that is more than the amount required on the support chart. Child support can be increased or decreased at any time until the child reaches the age of 18 or graduates high school, whichever is later, and Arkansas law requires the non-custodial parent to provide proof of income upon request by the custodial parent at least once a year.
If you have any questions about child support or would like to see a copy of the Arkansas Family Support Chart, feel free to ask an attorney.
Uncontested v. Contested
An uncontested divorce is the most simple of divorce proceedings. Typically, the parties have already divided property, determined the custody of the kids and the support and visitation. An uncontested divorce would require that the other party is not contesting the divorce, and is willing to sign off on a waiver and the proposed divorce decree. Not only is an uncontested divorce a lot quicker to finalize, it is also much less expensive.
A contested divorce typically involves parties that are unable to reach an agreement on certain issues. The issues could be a simple as the division of property or as complex as child custody and visitation. Contested divorces generally involved both parties obtaining attorneys, and filing temporary motions and seeking discovery from the opposing side. Not only is a contested divorce time consuming, but it can also get extremely expensive for both sides.
In an uncontested divorce, you will attend one hearing. Arkansas has a mandatory thirty (30) day waiting period once the divorce is filed before a hearing can be held. You must bring a witness to the divorce hearing that can answer the following two questions: (1) Verify you have been a resident of the State of Arkansas for the past sixty (60) days, and (2) Verify you have been separated from your husband for the past ninety (90) days. Normally, an uncontested divorce hearing last less than five (5) minutes, although it may take an hour or so before your name is called.
In a contested divorce, you could be required to attend multiple hearings. The first hearing is typically the temporary hearing which is used to establish temporary custody and temporary child support. These hearings are typically not very time consuming, but do require some additional preparation time for you and your attorney. After the temporary hearings, the attorneys typically exchange discovery (legal questions and request for production of documents) to prepare for the final hearing. If the parties cannot agree on the division of property, child custody, visitation and child support, a final hearing could be lengthy, and require additional preparation time for you and your attorney.
The Divorce Decree is the document signed by the Judge that officially terminates the marriage. In cases involved child custody, child support and visitation, the divorce decree will be the “go-to" document to determine when visitation should occur, what child support should be paid, and who has custody of the child. Normally, visitation is established through a “Standard Order" which most Courts have entered to govern the visitation, including holiday visitation and other special occasions. Normally, the Court encourage as much additional visitation as the parties desire, however if the parties cannot agree on additional visitation, the Standard Order governs.