Arkansas Divorce Law

Divorce and Legal Separation in Arkansas


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Divorce and Legal Separation in Arkansas

Arkansas Divorce Basics

Termination of marriage in Arkansas is referred to as Absolute Divorce and Divorce from the Bonds of Matrimony.

Residency Requirement:

To file for termination of a non-covenant marriage, either party must show residence in Arkansas for 60 days immediately prior to filing the action and a residence in the state for three full months before the final judgment granting the decree of divorce.

Covenant Marriages:

To file for divorce or judicial separation in a covenant marriage, one or both spouses must be domiciled in the state and the ground asserted was committed or occurred in the state or while the matrimonial domicile was in the state.

If the ground occurred elsewhere while either or both spouses were domiciled elsewhere, the party obtaining the judicial separation must have been domiciled in the state prior to the time the cause of action accrued and is domiciled in the state at the time the action is filed.

Filing:

The Complaint for Divorce may be filed in the Circuit Court of the county where the Plaintiff (filing party) resides unless he/she is a nonresident of Arkansas and the Defendant (non-filing party) is a resident of the state; then the proceeding may be in the county where the Defendant resides.

The statements in the Complaint will not be accepted as true because of the Defendant’s failure to answer or admission of their truth on the part of the Defendant.

No decree of divorce shall be granted until at least 30 days have passed since the date the Complaint was filed. When the Defendant cannot be personally served, or fails to enter his/her appearance in the action, no decree of divorce shall be granted until the Plaintiff has maintained an actual residence in the Arkansas for no less than three months.

A divorce decree may be annulled by joint petition of the parties, verified by both parties in person, and filed in the court rendering the judgment.

Spouse’s Name:

In all cases when the court finds that either party is entitled to a divorce, the court may restore the wife to the name that she had before the marriage.

Covenant Marriage

Arkansas statute defines covenant marriage as a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship. Parties to a covenant marriage receive authorized counseling which emphasizes the nature, purposes, and responsibilities of marriage.

A man and a woman may contract a covenant marriage by declaring their intent to do so on their application for a marriage license, as required, and executing a declaration of intent to contract a covenant marriage.

Couples who are already married may convert their marriage to a covenant marriage by submitting a copy of their marriage certificate and executing a declaration of intent to designate their marriage as a covenant marriage to be governed by the applicable laws. The Declaration must be filed with the officer who issues marriage licenses in the county in which the couple is domiciled.

Only when there has been a complete and total breach of the marital covenant commitment may a party seek a declaration that the marriage is no longer legally recognized. In all divorce decrees that dissolve a covenant marriage created under the Covenant Marriage Act of 2001, the court shall enter a finding that the marriage being dissolved is a covenant marriage.

Legal Grounds for Divorce

“Regular” (Non-covenant) Marriage Dissolution Grounds:

The circuit court may dissolve and set aside a marriage contract, both from bed and board, and from the bonds of matrimony, for the following causes:
      1. Either party, at the time of contract, was and still is impotent;

      2. Either party has been convicted of a felony or other infamous crime;

      3. Either party has been addicted to habitual drunkenness for one year, is guilty of such cruel and barbarous treatment as to endanger the life of the other, or offers such indignities to the person of the other spouse that it renders his/her condition intolerable;

      4. Adultery;

      5. The spouses have lived separate and apart for three consecutive years without cohabitation due to the incurable insanity of one of them; and

      6. The spouses have lived separate and apart from each other for 18 continuous months without cohabitation.
When the couple has lived separate and apart for 18 months, the court shall grant an absolute decree of divorce at the suit of either party, whether the separation was the voluntary act of one party or by the mutual consent of both parties or due to the fault of either party or both parties.

When the couple has lived separate and apart for three years due to the insanity of one of them, the court shall grant a decree of absolute divorce upon the petition of the sane spouse if the proof shows the following regarding the insane spouse:
He/she has been committed to an institution for the care and treatment of the insane for at least three years prior to filing;
  • He/she has been adjudged to be of unsound mind by a court of competent jurisdiction;
  • He/she has not been discharged from that adjudication by the court;
  • Proof of the insanity is supported by the evidence of two reputable physicians familiar with the mental condition of the spouse, one of whom is a regularly practicing doctor in the community where the spouse resided; and
  • The proof in the case is supported by the evidence of the superintendent of one of the physicians of the institution where the insane spouse has been confined.
The cause of action and cause of divorce must have occurred or existed in the state or, if out of state, must be a legal cause of divorce in Arkansas, the laws of this state to govern exclusively and independently of the laws of any other state as to cause of divorce; and the cause must have occurred or existed within the five years immediately before commencement of the suit.

A divorce will not be granted if the cause asserted has occurred due to the collusion of the parties or was done with an intent to procure a divorce; if the Complainant consented to the act; or both parties were guilty of the “wrong-doing”.

Covenant Marriage Dissolution Grounds:

A Plaintiff who files for dissolution of a covenant marriage must state in his/her petition that he/she is seeking to dissolve a covenant marriage.
If after obtaining authorized counseling, a party to a covenant marriage still desires a divorce, he/she may seek a judgment for one only upon proof of the following grounds:
      1. The other spouse has committed adultery;

      2. The other spouse has committed a felony or other infamous crime;

      3. The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses:

      4. The spouses have been living separate and apart continuously without reconciliation for a period of two years; or

      5. The spouses have been living separate and apart continuously without reconciliation for a period of two years from the date the judgment of judicial separation was signed, or, if there is a minor child or children of the marriage, they have been living separate and apart continuously without reconciliation for two years and six months from the date the judgment of judicial separation was signed.
However, if abuse of a child of the marriage or of one of the spouses was the basis for the judicial separation, then the judgment of divorce may be obtained if the spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of judicial separation was signed.

Annulment

Prohibited and Void Marriages:
  • In marriages where the parties are under age (a male under 17 years or a female under 16 years) and consent from a parent or guardian had not been obtained, or there has been a misrepresentation of age by a contracting party, the marriage contract must be set aside and annulled if the parent(s) or guardian files an application to the circuit court with jurisdiction.
  • All marriages between parents and children, including grandparents and grandchildren of every degree, between brothers and sisters (half or whole), and between uncles and nieces, and between aunts and nephews, and between first cousins are declared to be incestuous and absolutely void.
  • Marriage between persons of the same sex is void.
  • No one may marry another person if his/her former spouse is still living, unless that former marriage has been dissolved for one of the legal grounds of the state.
In all cases in which any husband abandons his wife, or any wife abandons her husband, and resides outside of the state for five successive years without being known to the other spouse to be living during that time, the abandoning party’s death shall be presumed. Any subsequent marriage entered into after the end of the five year period shall be as valid as if the husband or wife were actually deceased.

Voidable Marriages:
  • Either party to a marriage is incapable of consenting to any marriage due to age or understanding;
  • Either party is incapable of entering into the marriage state due to physical causes; or
  • Consent of either party to the marriage has been obtained by force or fraud.
These marriages shall be void from the time its nullity shall be declared by a court of competent jurisdiction.

Property Division

Arkansas is an equitable division state. At the time a divorce decree is entered all marital property shall be distributed 50/50 to each party unless the court finds such a division to be inequitable. In those cases, the court will provide for other distributions as deemed equitable and after considering the following factors:
  • The length of the marriage;
  • Age, health and station in life of the parties;
  • Occupation of the parties;
  • Amount and sources of income;
  • Vocational skills;
  • Employability;
  • Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
  • Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
  • The federal income tax consequences of the court’s division of property.
All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable. All final orders or judgments shall designate the specific real and personal property to which each party is entitled.

When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one party on condition that half the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.

Arkansas statute defines marital property as all property acquired by either spouse after the marriage with the following exceptions:
  • Property acquired prior to the marriage or by gift or by reason of death of another, including life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account (IRA), and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death (POD) or a transfer on death (TOD) arrangement;
  • Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
  • Property acquired by a spouse after a decree of divorce from bed and board;
  • Property excluded by valid agreement of the parties;
  • The increase in value of property acquired prior to marriage or by gift or by reason of death of another, including life insurance proceeds, payments made under a deferred compensation plan, or an IRA and property acquired by right of survivorship, by a trust distribution, bequest or inheritance, or by a POD or TOD arrangement, or in exchange for that property;
  • Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses; and
  • Income from property owned prior to the marriage or from property acquired by gift or by reason of the death of another, including life insurance proceeds, payments made under a deferred compensation plan, or an IRA, and property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a POD or TOD arrangement, or in exchange for same.
The court is not required to address the division of property at the time a divorce decree is entered if either party is involved in a bankruptcy proceeding.

Alimony and Support

When a decree is entered, the court shall make orders concerning the alimony of the wife or husband as are reasonable from the circumstances of the parties and the nature of the case.

Unless otherwise ordered by the court or agreed to by the parties, alimony will automatically end when one of the following occurs:
  • The party receiving alimony remarries;
  • The establishment of a relationship that produces a child(ren) and results in a court order directing another person to pay support to the party receiving alimony (considered the equivalent of marriage); or
  • The establishment of a relationship that produces a child(ren) and results in a court order directing the party receiving alimony to provide support for another person who is not a descendant by birth or adoption of the party paying alimony (considered the equivalent of marriage.)
In addition to any other remedies available, alimony may be awarded under proper circumstances to either party in fixed installments for a specified period of time subject to the death of either party, the remarriage of the receiving party, or other contingencies as set forth in the award, so that the payments qualify as periodic payments within the meaning of the Internal Revenue Code.

Child Custody and Support

Custody:

In an action for divorce, the award of custody of a child of the marriage shall be made without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child.

In determining the best interest of the child, the court may consider the preferences of the child if the child is of sufficient age and capacity to reason, regardless of chronological age.

When it is in the best interests of a child, custody shall be ordered in such a way as to assure the frequent and continuing contact of the child with both parents, and may consider awarding joint custody of a child to the parents in making the order for custody.

When making an order for custody, the court may consider, among other factors, which party is more likely to allow the child frequent and continuing contact with the non-custodial parent.

If a party to an action concerning custody of or a right to visitation with a child has committed an act of domestic violence against the party making the allegation or a family or household member of either party and the allegations are proven by a preponderance of the evidence, the circuit court must consider the effect of the domestic violence upon the best interests of the child, whether or not the child was physically injured or personally witnessed the abuse, together with any facts and circumstances that the circuit court deems relevant.

The court operates under the presumption that it is not in the best interest of the child to be placed in the custody of an abusive parent in cases in which there is a finding by a preponderance of the evidence that the parent has engaged in a pattern of domestic abuse; nor in the care or custody of a sex offender or to have unsupervised visitation with a sex offender.

Parenting Class:

When the parties to a divorce action have minor children residing with one or both parties, the court may require them to attend parenting classes prior to or after entering a decree of divorce. The parents may have to complete at least two hours of classes concerning parenting issues faced by divorced parents or submit to mediation in regard to addressing parenting, custody and visitation issues.

Each party will be responsible for his/her cost of attending classes or mediation. The parties may choose a mediator from a list provided by the judge of mediators who have met the Arkansas Alternative Dispute Resolution Commission’s requirement guidelines for inclusion on a court-connected mediation roster, or select a mediator not on the roster, if approved by the judge.

Support:

When determining a reasonable amount of support, the court shall refer to the most recent revision of the family support chart. There is a presumption for the award of child support that the amount referenced in the chart is the correct amount to be awarded.

To overcome this presumption, there must be a finding that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the chart.

The Arkansas Family Support Charts use the Varying Percentage of Income Model in determining child support obligations. There are weekly, biweekly, monthly and semi-monthly charts. They are based on the paying parent’s net income and the number of children for whom support is being ordered.

When the paying parent’s income exceeds that shown on the chart(s), the following percentages of the amount of the payer’s income that exceeds the chart amount shall be used to set and establish a dollar amount of support:
    15% for one dependent;
    21% for two dependents;
    25% for three dependents;
    28% for four dependents;
    30% for five dependents; and
    32% for six dependents.
To compute child support when income exceeds the chart amounts, add together the maximum chart amount and the percentage of the dollar amount that exceeds that figure, using the percentages above. The total will be the child support obligation amount.
 
Relevant factors to be considered by the court in determining appropriate amounts of child support shall include the following:
  • Food;
  • Shelter and utilities;
  • Clothing;
  • Medical expenses;
  • Educational expenses;
  • Dental expenses;
  • Child care;
  • Accustomed standard of living;
  • Recreation;
  • Insurance;
  • Transportation expenses; and
  • Other income or assets available to support the child from whatever source, including the income of the custodial parent.
Other factors may also warrant adjustments to the child support obligations and may include the following:
  • The procurement and maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
  • The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children;
  • The creation or maintenance of a trust fund for the children;
  • The provision or payment of special education needs or expenses of the child;
  • The provision or payment of day care for a child;
  • The extraordinary time spent with the non-custodial parent, or shared or joint custody arrangements;
  • The support required and given by the paying parent for dependent children, even in the absence of a court order; and
  • When the amount of child support indicated on the chart is less than the normal costs of child care, the court shall consider whether a deviation is appropriate.
In addition to the award of child support, the court order shall provide for the child’s health care needs, which normally includes health insurance if available to either parent at a reasonable cost.
The court may provide for the payment of child support beyond the 18th birthday of the child to address the educational needs of a child whose 18th birthday falls prior to graduation from high school, provided that the support is conditional on the child remaining in school.
The court may also provide for the continuation of support for an individual with a disability that affects the ability of the individual to live independently from the custodial parent.

The court may required the parent ordered to pay child support to furnish and file a bond with the clerk of court, post security, or give some other guarantee in an amount and with sureties that the court directs.

Judicial Separation, Separate Maintenance and Divorce from Bed and Board

“Regular” (Non-covenant) Marriage Legal Separation Grounds:

When a non-covenant married couple separates but chooses not to terminate the marriage, they may seek a divorce from bed and board or separate maintenance. These actions have all the same requirements and provisions as an absolute divorce: grounds, residence, division of property, establishment of child custody and support; but do not terminate the marriage, nor do they leave the parties free to remarry.

Covenant Marriage Legal Separation Grounds:

Judicial separation refers to the judicial proceeding that results in a court determination that the parties to a covenant marriage live separate and apart. If after obtaining authorized counseling, a party to a covenant marriage still wants to separate, he/she may seek a judgment of judicial separation only upon proof of the following grounds:
      1. The other spouse has committed adultery;

      2. The other spouse has committed a felony and has been sentenced to death or imprisonment;

      3. The other spouse has physically or sexually abused the spouse seeking the legal separation, or a child of one of the spouses;

      4. The spouses have been living separate and apart continuously without reconciliation for a period of two years; or

      5. The other spouse has been addicted to habitual drunkenness for one year, is guilty of such cruel and barbarous treatment as to endanger the life of the other, or offers such indignities to the person of the other spouse that it renders his/her condition intolerable.
An action for a judicial separation in a covenant marriage may be brought in a county where either party is domiciled or in the county of the last matrimonial domicile.

In a proceeding for a judicial separation in a covenant marriage or thereafter, a court may award a spouse the same relief granted in a proceeding for divorce, including spousal support, claims for contributions to education, child custody, visitation rights, child support, injunctive relief, and possession and use of a family residence or joint property.

Judicial separation in a covenant marriage does not dissolve the bond of matrimony since the separated spouses are not free to remarry, but it puts an end to their conjugal cohabitation and to the common concerns that existed between them. Spouses who are judicially separated in a covenant marriage shall retain that status until either reconciliation or divorce.

Links to State Resources

  • Arkansas Code

    Links to Arkansas State Codes/Statutes. Title 9, Family Law, covers statutes regarding Marriage, Divorce, Annulment and other related topics.

  • Child Support Guidelines

    Information regarding Arkansas child support guidelines, including administrative orders and support charts.


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