If you are thinking about or going through a divorce in Arkansas, you will receive free advice from many sources and a lot of it will be wrong. Most of us know someone that has been divorced and they will often give advice (whether you ask for it or not). Arkansas divorce law can be difficult to fully understand. If you have children and property, divorce can become very frustrating.
Misunderstanding divorce law and making the wrong moves can have a big impact on your final result. Below are a few Arkansas divorce myths and facts.
Most divorces are settled in court.
A divorce suit begins with the filing of a complaint, but that does not mean it will end in a trial. It also doesn’t mean you must have expensive court battles and long delays. Most Arkansas divorces are settled without a final divorce hearing in court. Normally, competent attorneys can work with you to arrive at a final agreement. This avoids a third party (judge) hearing your case for a few hours, then determining important issues that will impact you and your children for years.
wh Law | We Help provides flat-fee divorces. Our goal is the same as yours – resolve your divorce favorably, without unnecessary delays or running up bills for extra attorney hours. For more information on flat-fees see: How much does an Arkansas divorce cost?
Mom gets custody of the children, especially young children.
Arkansas law does not favor either parent. This has been a fact for many years, but I still hear this on a regular basis. Custody and visitation is based on the best interests of the child and depends on the facts and circumstances of your particular case. This does not change just because the child is an infant or toddler.
The spouse that cheated is at fault and will be punished by the court.
Cheating, or adultery, provides grounds for asking the court for a divorce. It does not put the cheating party in a worse position for child custody, property settlement or any other divorce issues. If that seems unfair, consider this: Is cheating an indication that the person is a bad at marriage? Of course. Does cheating, alone, show that they are a bad parent? No. Did cheating have consequences for someone during a divorce in 1818, probably? In 2018? No.
We can agree to a child support amount or decide it is not necessary.
Wrong. Child support is determined by Arkansas state law. Unless there is joint custody, Arkansas child support must follow charts provided to the court. Support is based on the amount of income the non-custodial parent (the parent that has the child less) makes, how often they are paid per month and how many other children the paying parent has to support.
You cannot agree to a different amount, but the court might allow an amount that is not on the chart. You must provide the proper information for the court to allow it. It is very easy to get this wrong without the help of an attorney.
We regularly help clients that have filed their own divorce and had it denied for incorrect child support arrangements. And, no, you can’t agree to take a smaller property settlement to eliminate child support.
The kids want to live with me, they get to pick where they live.
A judge might consider the preference of your children, but this is only one of several factors used to decide custody and it may carry little or no weight (consider, the age of the child or evidence that one parent is telling the child what to say). Also, do you really want to force the kids to pick sides or testify in court?
Arkansas courts base child custody decisions on the “best interests of the child.” For more information on “best interests of the child” see: 4 Things NOT in the Best Interest of the Child – and Joint Custody and Relocation in Arkansas.
I can keep the other parent from seeing the kids because he/she isn’t paying support, moved out, cheated, etc.
Wrong. There is a process for enforcing child support. Denying access to the kids is not it. Threatening or denying visitation is always a bad idea, regardless of the reason (other than true safety issues, which you should take to the judge). An important factor in the “best interests of the child” is whether one parent is keeping the other from having a relationship with the child.
We each get half of the marital estate.
Arkansas divides property based on “equitable distribution.” This does not mean equal, it means the property division will be fair. The court determines what is fair and has a lot of power to decide how things are divided. So, you might be awarded the marital home and your spouse might receive other property, cash or other item(s) of similar value.
They won’t sign the papers, so I can’t get divorced.
You can move forward with a divorce without the other party signing, if you follow the right process. This is also a common problem we see with potential clients, especially when they have already attempted a divorce on their own. Interestingly, the divorce is often “uncontested,” but the other party can’t be found or just won’t cooperate, even though children and property are not involved. See, How Do I Serve Someone?
I got (the house, land, mom’s insurance pay-out) before the marriage, so it is mine.
Not necessarily. Remember, “equitable distribution” above? Normally, the court will divide property fairly. Also, you may have taken actions that has turned non-marital property into marital property. Consult an attorney about your property, any action that might have caused a problem and ANY action you might take now or during the divorce that could create a problem.
The father of my child and I were never married but his name is on the birth certificate so he is legally the father.
There is a presumption that your spouse is the father of your child if the child was born during the marriage. However, if a child was born out of wedlock, paternity is only established by DNA testing or execution of an affidavit acknowledgment paternity by the father. Merely placing the father on the birth certificate does not establish that he is the legal father. This means that he has no legal rights to the child and unless paternity is established by appropriate means, child support cannot be collected from him and other rights of inheritance for the child are not available. Although having the father’s name on the birth certificate does not convey paternity, it may be used to aid in the presumption of paternity when trying to prove it is so.
A Domestic Restraining Order was filed in my divorce case. I can’t talk to my spouse.
Wrong. A restraining order prevents you from performing some act. Many people are surprised by the name of this document, especially when filed by their attorney. This is NOT an Order of Protection or No Contact Order. It serves specific and important purposes: prevents marital property from being removed from the court’s power, removing children from the court’s jurisdiction and tells the parties to act in a civil manner. When a divorce is filed, your property is under the jurisdiction of the court. The restraining order keeps both spouses from selling, trading, removing or destroying property or taking out loans. This is to make sure the property stays in place and is available for the judge to equitably (fairly) divide the property.
A standard Domestic Restraining Order during divorce is NOT an order of protection or No contact order. If you need one for protection, you must follow the steps.
If you are unfortunately going through a divorce and need help working through the facts and myths of an Arkansas divorce, please contact us and our team will be happy to help you sort the myths from the truth.