Overview of Divorce Laws in Arkansas
If you are considering a divorce in Arkansas, it is important to understand the divorce laws and how they apply to your situation.
This overview will assist in growing your understanding of the divorce laws in Arkansas. Specifically, we’ll cover what happens with your debts, retirement plans, and much more.
Let’s dive in.
- Equitable Distribution & Asset Division
- Alimony & Child Support
- Child Custody & Visitation
- Divorce Process
- Other Divorce Issues
Equitable Distribution & Asset Division
Arkansas is an equitable distribution states. This means that all assets acquired during a marriage will be divided in a fair and equitable manner, but not necessarily 50/50.
Courts will consider several factors in determining how to equitably divide property. These may include the length of marriage, age and health of each spouse, occupations, amount of income, vocational skills and employability, contributions of each party (including homemaking) and tax consequences of the division.
Generally, any property acquired before a marriage or after a date of separation are considered separate assets. Gifts or an inheritance directed to one spouse only are not considered marital property and do not need to be split as part of the divorce.
Separate property is awarded only to the spouse who owns it but if the assets have been commingled during the marriage, then they may also be divided equitably as well. For example, if a spouse receives a cash gift and deposits it into a joint bank account where both spouses have access, it may very well become a marital asset.
Debts in Arkansas are treated just like assets in a divorce. This means they will be divided fairly and equitably, but not necessarily on a 50/50 basis. The court will consider the same factors as dividing assets, including income and resources of each spouse, among other things.
Debts acquired before a marriage will be the responsibility of the person who accumulated them. But this can be problematic when those debts are commingled within a marriage. For example, a student loan may be in only one spouse’s name, but that loan could have been seen as an investment by both spouses at the time to help improve their household income.
Gifts and Inherited Property
In most cases, gifts to one spouse and inherited property are considered separate assets and are not split in an Arkansas divorce.
However, when an inheritance is spent inside of the marriage in a way that benefits both spouses, it can become marital property. This commingling can add a level of complexity to a division of assets but the funds may be recovered by one spouse if they can document the money used came from an inheritance.
There are also times when inherited funds cannot be recovered. If inherited funds were used to buy the other spouse a gift, those funds are not recoverable in a divorce. Also, if inherited funds were used to pay a marital debt, those funds become part of the marital estate as well.
Another way to protect a gift or inheritance is to have a spouse sign a pre- or postnuptial agreement whereby he or she agrees that the asset belongs exclusively to the other spouse, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and Retirement Plans
In Arkansas, vested and unvested pensions and retirement account assets are considered marital property.
Any pension or retirement funds accumulated before a marriage or after a date of separation are considered separate assets and not subject to equitable distribution. Spouses must also have been married for 10 years during which time the benefits were being accumulated.
The payout to the non-covered spouse may not begin until the covered spouse begins receiving benefits or reaches age 65, whichever comes first.
There are several possible methods for determining the value of a retirement asset and when spouse’s cannot agree on the exact value, experts may be retained to make that determination. Those experts can include CDFAs, accountants, appraisers, or pension valuators.
After a final divorce decree has been approved, legally splitting pensions and other retirement funds is done by having an attorney or a specialized firm create a qualified domestic relations order, more commonly referred to as a QDRO.
You can get your QDRO online! We recommend QDRO Counsel since their interface makes it easy (and inexpensive) to have your Qualified Domestic Relations Order drafted and filed.
The QDRO must be approved by the court. It is then submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the account is divided according to the specific written instructions of the QDRO.
In Arkansas, property one spouse owned before a marriage, or property that was given to them by a gift or inheritance during a marriage is generally considered separate property and not subject to a division of assets.
Separate and marital asset issues can be quite complex so it is best to consult an attorney if you are not sure of the status of your asset or your situation.
Alimony and Child Support
Alimony in Arkansas
Alimony can be granted in Arkansas on a case-by-case basis. The amount and duration are based on the unique circumstances of the marriage and may be granted on either a temporary or a permanent basis.
Courts will award alimony based on the means of the parties and what is reasonable. The assets of both parties, future possible employment, earning capacity, who is responsible for the primary care of any children, health, the amount of time it may take to get additional education or training to find meaningful employment and other factors are taken into account when attempting to reach a fair agreement.
Child Support in Arkansas
Child support in Arkansas is based on the Percentage of Income Formula. Essentially, this means that the court looks at the amount of income that the noncustodial parent earns and then applies a percentage of that income for child support.
Courts have considerable leeway and can apply various factors that will influence the final award amount. Deviations or modifications might include things such as medical issues, special needs, education, daycare, transportation, insurance and other related and relevant factors.
In addition to child support payments, an Arkansas court may order a parent to include children on the parent’s health, dental and life insurance coverage.
Parents who do not meet their obligation may be referred to the Office of Child Support Enforcement who will take appropriate actions to make sure compliance is achieved.
Child Custody and Visitation
Child Custody in Arkansas
Child custody in Arkansas is based on several factors but is always driven by what is considered the best interests of the children.
Courts have a fair amount of leeway in determining physical and legal custody and will base decisions on things such as:
- The sex and age of the children.
- Any issues or history of drug or alcohol abuse
- The relationship between the children and their parents, and to each other.
- The emotional, social, moral, material, and educational needs of the children.
- The ability of each parent to provide a suitable level of care on a daily basis.
- The preference of the child on where they want to live. This carries more weight if they are old enough and mature enough to provide input.
- Any other factor or relevant evidence.
Grandparents have custody rights in Arkansas as well. According to Arkansas Code – Title 9 – Chapters: 13-101, “A grandparent shall be entitled to notice and shall be granted an opportunity to be heard in any child custody proceeding involving a grandchild who is twelve (12) months of age or younger when: (a) A grandchild resides with this grandparent for at least six (6) continuous months prior to the grandchild’s first birthday; (b) The grandparent was the primary caregiver for and financial supporter of the grandchild during the time the grandchild resided with the grandparent; and (c) The continuous custody occurred within one (1) year of the date the child custody proceeding was initiated.”
For the most smooth and amicable co-parenting experience, we recommend using Our Family Wizard, an app that allows for all kinds of communication and scheduling all in one place. Our Family Wizard is the best resource for any parents who want to collaborate effectively for the sake of their child.
Substance abuse can be cited as a fault-based ground for divorce in Arkansas. Much like domestic abuse, when it can be proven, substance abuse can have a material impact on child custody. Custody and visitation could be severely restricted or even completely denied until the substance abuse is treated.
Because there is an important need to divide assets fairly and accurately in an Arkansas divorce, disclosing assets honestly is critical to the process.
Unfortunately, some spouses may try to hide assets, either by transferring money to a secret account or stashing physical assets away in a remote location. This is not only dishonest, it is illegal.
If a spouse is caught, they will be punished and may end up facing civil and possibly criminal penalties. A judge may also decide to award full value of the assets in question to the other spouse as part of the penalty.
If a spouse is not cooperative or can’t be found and you are attempting to get a divorce, if they do not respond to a divorce complaint within 30 days, the plaintiff can seek a default. In this case, the judge will approve the divorce action if all the paperwork is in order without the input of the defendant.
When someone can’t be located, they can be served by placing a Warning Order in a newspaper in the jurisdiction of their last known whereabouts. Once proof of publication is filed with the court, a plaintiff can file for a court date to seek a default judgment.
This means a spouse will forfeit their right to contest any terms of the divorce, including issues such as child custody, support, alimony and a division of assets and debts.
Other Divorce Issues
Arkansas law enforcement treats domestic violence as a serious issue in all cases. It may be a precursor to divorce but the primary concern in a domestic violence situation is for the immediate safety of all potential victims.
Under Arkansas law, domestic violence can include any kind of physical abuse, bodily injury, emotional abuse, threats, stalking, or any other kind of harassment including those made through phone calls, mail, or social media. This can extend to current spouses, former spouse, people living in a household, any children, or people who are currently dating or have dated in the past.
Domestic violence, when proven, can have a big impact on custody issues in a divorce. The court must consider a child’s best interests when deciding custody issues, and when domestic violence is present, it can severely restrict custody and visitation. In some cases, a spouse may be denied these privileges completely (the Arkansas Department of Human Services is empowered to terminate a parent’s rights).
In other cases, an abusive parent may be required to undergo drug or abuse counseling or be required to be limited to supervised visits only.
Most all employers require that when two spouses divorce, health care coverage will end for the non-employee. This means they will need to seek out other means of coverage.
In some cases, Arkansas courts will rule that one spouse must continue health insurance cover for the other after a divorce. In virtually all cases, health insurance coverage is required for all children and is the responsibility of both spouses. The coverage costs can be added to both the basic child support and alimony obligations.
An ex-spouse can apply for COBRA (Consolidated Omnibus Budget Reconciliation Act) benefits for up to 36 months. This law allows a spouse to piggyback off a former spouse’s coverage but it is generally very expensive to do so.
Infidelity and Adultery
When a spouse has sex with someone other than their spouse while they are still married in Arkansas, this constitutes infidelity. Under state law, it can be cited as one of the fault-based grounds for divorce.
Arkansas courts have also ruled that marital misconduct may or may not be something that meaningfully relates to need or the ability to pay alimony. However, adultery can still have some impact on alimony if it can be proven that the act led to other serious related impacts such as a mental breakdown or the loss of a job.
Military Divorces in Arkansas
If a spouse is in the armed services, one of you must either live or be stationed in Arkansas so that proper jurisdiction can apply.
The same grounds that apply for a civilian divorce apply for a military divorce as well.
When a spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act. This has several protections for military personnel currently serving on active duty.
Among these, it allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments. However, a service member may choose to waive delaying the divorce by signing off on paperwork which will then allow the divorce to proceed uncontested.
A key element is that the former spouse must have been married to the former servicemember for a minimum of 10 years while the military member has served on active duty. It also grants healthcare benefits to some former spouses as well as access to military exchanges and commissaries.
It also governs how retirement pay may be disbursed when it comes to alimony or child support.
Although child support and spousal support are determined by Arkansas state guidelines, federal law dictates that these awards may not exceed 60% of a servicemembers pay and allowances.
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