Overview of Divorce in Arkansas
We take your divorce seriously. Before thinking about divorce, it’s important to remember that there are two aspects to marriage in Arkansas. That doesn’t have anything to do with divorce lawyers. But there is, of course, another aspect of a marriage: the legal relationship between the parties in the eyes of the State of Arkansas. That’s where the divorce attorney comes in. And they’re important.
When a person comes in to talk to an Arkansas divorce lawyer, the marriage is often already “over” in the first sense. That is, one or more of the parties has broken his or her vows and “breached” the covenant that they entered into
What type of divorce is appropriate?
If the marriage has indeed ended, the next decision is what type of divorce to pursue. Under Arkansas law, there are two types of divorce: absolute divorce and divorce from bed and board. This is a situation where good legal representation can help.
Absolute divorce is what we usually think of when a divorce case. An absolute divorce ends the marriage permanently for the parties involved. In order to receive an absolute divorce, one party must be able to show adequate grounds to end the marriage.
Divorce from Bed and Board
Limited divorce is different from absolute divorce because it does not end the marriage. A couple who has received a limited divorce—or a divorce “from bed and board”—cannot remarry.
They can still file their tax return together and the parties can still own property as “tenants by the entirety,” which is normally reserved only for married couples. Because the parties are still technically married, one spouse can include the other on a health insurance plan.
There will be a property settlement agreement and agreements on child support and child custody. Like absolute divorce, one party must be able to show adequate legal grounds to end the marriage. A couple may choose this option because the stigma of divorce may be too great or may be prohibited for religious reasons.
Separate Maintenance (aka Legal Separation)
Separate maintenance is basically alimony, or support paid from one spouse to another. The main difference between the previous two categories and separate maintenance is that a party does not need to prove any fault grounds to secure an order for separate maintenance. All one needs to be able to show is the need for support and an absence of fault—that the person seeking separate maintenance has not given the other spouse a ground for divorce. He or she must also be able to show residence and genuine separation.
Arkansas Divorce Myths and Facts
Misunderstanding divorce law and the divorce process 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.
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.
Yes, they are at fault. No, they will not be punished for it. 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?
We can agree to child support.
Wrong. Child support is determined by Arkansas state law. Unless there is joint custody, Arkansas child support must follow charts provided to the court.
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.
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.
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.
What is an Uncontested Divorce?
We define an uncontested divorce as on where both spouse already agree (before we have to get in there and break up a fight or two) on the following:
- Division of Assets (what you own)
- Division of Debts (what you owe)
- Custody of the Children (who gets them and when)
- Child Support (who and how much)
- Spousal Support (if someone gets it and how much)
Once the spouses have agreed on everything, it is our job to finalize the documents and make it happen under Arkansas law.
One attorney or firm cannot represent both parties. For that reason, we will only meet with one of the parties at the initial meeting. That person will be our client. Click here to read about an Uncontested Divorce