Arkansas Divorce Procedures

Arkansas Divorce Procedures
 
Complete overview of Arkansas divorce laws for people considering an Arkansas divorce or filing an Arkansas divorce with issues to be resolved about child custody, child support, visitation and alimony.

Arkansas State Divorce Residency Requirements

In order to file your Complaint for Divorce in Arkansas, you must make sure the Chancery Court has jurisdiction over your case. The most common way spouses are eligible to use a specific court system is by meeting the residency requirements. Meeting the Arkansas residency requirements is typically only a concern for a spouse who has recently moved or is planning to move in the near future. The filing requirements are as follows:

A spouse must be a resident of the state of Arkansas for at least 60 days prior to filing for the divorce and the divorce will not be finalized until a 3 months waiting period has passed after the initial filing.

The proceedings shall be in the county where the complainant resides unless the complainant is a nonresident of the State of Arkansas and the defendant is a resident of the state, in which case the proceedings shall be in the county where the defendant resides, and, in any event, the process may be directed to any county in the state.

(Arkansas Code – Title 9 – Chapters: 12-301 and 12-303)

Since divorce is governed by state law, it is required that you meet specific residency requirements in order to file for a divorce in the state of Arkansas. It is most common that people file for a divorce in the county in which they live.

If you are unsure of whether or not you meet the Arkansas residency requirements you can try contacting the Clerk’s office of the domestic relations or family law division of your county courthouse.

Arkansas Grounds for Divorce

The Complaint for Divorce is the initial document filed with the Arkansas court. It is in this document that the filing spouse will request the court to terminate the marriage under certain specified grounds.

The circuit court shall have power to dissolve a marriage for the following causes: 

No-Fault Based Grounds:
a)  When husband and wife have lived separate and apart from each other for 18 months; b) Mutual consent of both spouses or due to the fault of either spouse or both spouses;

Fault Based Grounds:
a) Impotence; b) Convicted of a felony or other infamous crime; c) Habitual drunkenness for one 1 year; d) Be guilty of such cruel and barbarous treatment as to endanger the life of the other; or e)  Offer such indignities to the person of the other as shall render his or her condition intolerable; f) Adultery.

(Arkansas Code – Title 9 – Chapters: 12-301) 

Every divorce case that is filed in the state of Arkansas must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Arkansas Uncontested Divorce

This information is an overview of the uncontested Arkansas divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those “do it yourself divorce” filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Arkansas.

To file for a divorce in Arkansas, a spouse must reside there for 60 days to file and then an additional three months before the action can be made final. The action should be filed in the county of the Plaintiff, but if the Plaintiff is a nonresident, the action may be filed in the county of the Defendant.

Grounds for divorce are No-Fault, which means “[v]oluntarily living separately without cohabitation for 18 months”; and general, including: a) impotence; b) adultery; c) confinement caused by mental illness for a period of three years; d) conviction of a felony; e) cruel and inhuman treatment which endangers the life of the spouse; f) personal indignities; g) habitual intemperance (drunkenness) for a year; h) commission and/or conviction of an infamous crime; i) nonsupport, “whereby the spouse is able to provide support but willfully fails to provide suitable maintenance for the complaining spouse.”

Actions are filed in the Circuit Court. The filing spouse is called the Plaintiff; the responding spouse is called the Defendant.

Legal separations are permitted under the same general grounds as divorce as well as voluntary separation for 18 months and willful desertion for a year.

For an uncontested divorce, proof of a spouse’s residency, proof of separation and proof of noncohabitation may be provided by a signed affidavit from a third party. Moreover, in an uncontested divorce proof of grounds need not be corroborated by a third party.

Indigent parties may file In Formas Pauperis, which is particularly important in the event that the Plaintiff has difficulty serving the Defendant with the divorce papers.

To file for an uncontested divorce in a marriage without children, the Plaintiff must file the following forms:

a) A Complaint for Divorce, which stipulates that the Plaintiff meet the residency requirement, that there are no minor children born of the marriage and none expected, that the parties have separated and remained separated.

The Plaintiff files the Complaint with a cover sheet with the Circuit Clerk, who issues a Standard Restraining Order that restrains the parties from mutual harassment or dissipation of marital property as well as a:

b) Summons, which gives the Defendant a number of days to answer the Complaint.

If the Defendant agrees to waive service of the Complaint and Summons, he or she must sign a verified and notarized Entry of Appearance and Waiver of Service of Summons, by which he or she agrees to let the case proceed and waives service of process.

If the Defendant will not sign an Entry of Appearance and Waiver of Service of Summons, then he or she must be served. This can be done in one of three ways:

1) Service by Sheriff or Process Server, or

2) Service by Certified Mail, Restricted Delivery, Return Receipt Requested, after which the Plaintiff must complete and file an Affidavit of Service by Mail and attach the green postal card to the Affidavit.

3) If both of these fall, the Plaintiff must serve the Defendant by publication. This requires that the Plaintiff demonstrated “due diligence” in locating the missing spouse. After attempts of service by Sheriff or Process Service and Service by Mail have failed, the Plaintiff may:

a) Publish a Warning Order on a bulletin board in the courthouse, if the court granted him or her permission to proceed with the divorce In Formis Pauperis, or

b) Publish the Warning Order in a newspaper of general circulation for at least two weeks, if the court did not grant him or her permission to proceed with the divorce In Formis Pauperis.

In either event, the Plaintiff must then file an Affidavit of Service by Warning Order, stipulating that the publication happened.

After the Complaint and other appropriate affidavits have been filed, the Plaintiff asks the court clerk to schedule a hearing. The Clerk issues a Notice of Hearing and the judge’s case coordinator schedules a time for an uncontested hearing. The Plaintiff must mail the Defendent a Notice of Hearing, by regular mail.

At the hearing, a witness normally testifies as to the grounds and residency of the Plaintiff.

The Plaintiff must also prepare a Decree of Divorce, which is signed by the judge after the hearing.

Normally, since the action is uncontested, the Plaintiff and Defendant will have reached and signed a Property Settlement Agreement, which is attached to the Decree of Divorce.

Arkansas Simplified Divorce Procedures

In an uncontested divorce, proof of a spouse’s residency, proof of separation, and proof of no cohabitation may be provided by a signed affidavit from a third party. In addition, in an uncontested divorce, proof of the grounds for divorce need not be corroborated by a third party.

[Arkansas Code of 1987 Annotated; Title 9, Chapters 12-306, 12-313, and 12-316].

Each state has its own unique filing procedure. When filing for divorce in Arkansas, you must adhere to the strict filing guidelines and prepare and submit the appropriate mandatory divorce documents to the county court. You will discover that some documents may be provided by the Arkansas Legal System and others must be constructed on a case-by-case basis containing certain information and criteria to adhere to the Arkansas Laws and the filing requirements.

Arkansas Property Division Factors

In Arkansas, the property and debt issues are typically settled between the parties by a signed Marital Settlement Agreement or the property award is actually order and decreed by the Chancery Court within the Decree of Divorce.

Arkansas is referred to as an “equitable distribution” state. When the parties are unable to reach a settlement, the Chancery Court will take the following approach to dividing the assets; First, it will go through a discovery process to classify which property and debt is to be considered marital. Next, it will assign a monetary value on the marital property and debt. Last, it will distribute the marital assets between the two parties in an equitable fashion. Equitable does not mean equal, but rather what is deemed by the Chancery Court to be fair.

The court shall distribute one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration: 

a) The length of the marriage;
b) Age, health, and station in life of the parties;
c) Occupation of the parties;
d) Amount and sources of income;
e) Vocational skills;
f) Employability;
g) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; h) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and 
i) The federal income tax consequences of the court’s division of property.

(Arkansas Code – Title 9 – Chapters: 12-315)

Since Arkansas is an “Equitable Distribution” state, all marital property will be divided in an equitable fashion according to the court unless agreed to otherwise by the divorcing spouses. What does “equitable” mean? Equitable can be defined as “what is fair, not necessarily equal.” To automatically believe the marital property would be divided 50-50 would be a wrong assumption in any equitable distribution state.

Arkansas Spousal Support/Maintenance/Alimony Factors

In Arkansas the support payments (if any) can certainly influence how the marital property distribution is awarded, which is why it can become a very intricate part of the final outcome of any divorce. Keeping this in mind, if you and your spouse are unable to reach and agreement on this issue, the Chancery Court will order support from one spouse to the other on a case-by-case basis as follows:

The court shall make orders concerning the alimony for the wife or the husband and they shall automatically cease upon the earlier of:

a) Remarriage of the person who was awarded the alimony; or
b) The establishment of a relationship that produces a child or children;
c) A relationship considered the equivalent of remarriage.

(Arkansas Code – Title 9 – Chapters: 12-312)

Arkansas Child Custody Factors

In Arkansas, the court will act in the best interest of the children and will give equal consideration to both the mother and the father when making a custody decision. 

The court may consider the preferences of the child if the child is of a sufficient age and capacity to reason, regardless of chronological age; The past and future roles of the parents; and past domestice violence.

(Arkansas Code – Title 9 – Chapters: 13-101)

In Arkansas, as with all other states, the court will always be looking out for the best interests of the children. What you want or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them.

Arkansas Child Support Factors

In awarding a reasonable amount of child support, the court is to consider the following factors:

a) the circumstances of the parents and child; and
b) the nature of the case. Child support payments may be ordered to be paid through the registry of the court and the court may require that a bond securing payment be required.

There is an official Arkansas Family Support guidelines chart which is presumed to be correct, unless the court finds that the amount would be inappropriate or unjust, considering the following factors:

a) any necessary medical, dental, or psychological care or insurance;
b) the creation or maintenance of trust fund for the child;
c) daycare expenses;
d) extraordinary time spent with the non-custodial parent; and
e) any additional support provided by the parent obligated to pay support. This chart should be available from the Clerk of any Chancery Court. In addition, an official Affidavit of Financial Means must be filed with divorce cases which involve issues relating to child support.

[Arkansas Code of 1987 Annotated; Title 9, Chapters 12-312 and 14-105 and Addendum to 1997 Arkansas Code Supplement].

Arkansas child support is typically calculated by using a Child Support Worksheet. The worksheet will generate an appropriate Arkansas child support obligation according to each spouse’s income and other relative numeric factors such as taxes paid and retirement contributions, etc.. Once this amount is determined it is essential to take a look at any appropriate Arkansas child support deviation factors that may be applicable to the situation.

Arkansas Grandparent’s Rights

Grandparent Rights to Visitation: Parents’ marriage terminated by death, divorce, or legal separation, or if child is in the custody or guardianship of a person other than one or both of his natural or adoptive parents. Title 9, Chapter 13, Section 9-13-103 (A.C.A. §9-13-103).

When Adoption Occurs: Adoption terminates any visitation rights unless the grandparent intervenes in the adoption and requests the right to visitation.

Child Custody Statutes: Only statutory provision is that custody is to be determined “without regard to the sex of the parent but solely in accordance with the welfare and best interests of the children.” A.C.A. §9-13-101 et seq.

Parents May Choose: Yes

Arkansas Military Divorce Laws

An Arkansas military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.

Military Protection From Arkansas Divorce Proceedings

There are laws set up to protect active duty military members against being held in “default” from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.

Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local Arkansas court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.

Serving an Active Military Spouse

The active duty spouse must be personally served with a summons and a copy of the divorce action in order for an Arkansas court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.

Residency and Filing Requirements

The typical military divorce filing requirements are as follows:

a) You or your spouse must reside in Arkansas
b) You or your spouse must be stationed in Arkansas

Grounds for Arkansas Military Divorce

The grounds for a military divorce in Arkansas are the same as a civilian divorce.

Dividing the Property

Along with the normal Arkansas property division laws, the federal government has enacted the Uniformed Services Former Spouses’ Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.

The federal laws will not divide and distribute any of the military members retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.

Child Support and Spousal Support

In Arkansas, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal Arkansas child support guidelines, worksheets and schedules are used to determine the proper amount of child support to be paid.

Arkansas Child Support Guidelines

The Arkansas child support guidelines “at a glance” provides a quick reference to what applicable child support laws are considered and/or not considered when determining the appropriate Arkansas child support order.

Arkansas Child Support Guidelines

> Income Share Model *: NO
> Percent of Income Model *: YES
> Worksheets Available: YES
> Extraordinary Medical Expenses Add on: NO
> Childcare Add on: NO
> Secondary Education Support: NO
> UIFSA: YES

* Percent of Income Model: Arkansas utilizes the percentage of income formula which determines the amount of child support as a percentage of the income of the parent obligated to pay the child support. This percentage is determined by factoring the number of children requiring support. This is the most basic or primitive method for calculating support. Many people believe that it does not take into consideration many important details, which makes this model of support calculation the least exact.

Arkansas Child Support Definitions

Definition of income.

Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker’s compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:

a) Federal and state income tax;
b) Withholding for Social Security (FICA), Medicare, and railroad retirement;
c) Medical insurance paid for dependant children, and
d) Presently paid support for other dependents by Court order.

Nonsalaried payors. For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient’s spouse and/or children on account of the payor’s disability.

For Veteran’s Administration disability recipients, Workers’ Compensation
disability recipients, and Unemployment Compensation recipients, the court shall consider those benefits as income.

For military personnel, see latest military pay allocation chart and benefits. BAQ (quarters allowance) should be added to other income to reach total income. Military personnel are entitled to draw BAQ at a “with dependents” rate if they are providing support pursuant to a court order. However, there may be circumstances in which the payor is unable to draw BAQ or may draw BAQ only at the “without dependents” rate. Use the BAQ for which the payor is actually eligible. In some areas, military personnel receive a variable allowance. It may not be appropriate to include this allowance in calculation of income since it is awarded to offset living expenses which exceed those normally incurred.

For commission workers, support shall be calculated based on minimum draw plus additional commissions.

For self-employed payors, support shall be calculated based on last year’s federal and state income tax returns and the quarterly estimates for the current year. Also the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc.

Imputed income. If a payor is unemployed or working below full earning capacity, the court may consider the reasons therefor. If earnings are reduced as a matter of choice and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support.

Spousal support. The chart assumes that the custodian of dependent children is employed and is not a dependent. For the purposes of calculating temporary support, a dependent custodian should be counted as two dependents as a guide in determining support. For final hearings, the court should consider all relevant factors, including the chart, in determining the amount of any spousal support to be paid.

Allocation of dependents for tax purposes. Allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the Court shall have the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.

Health insurance. In addition to the award of child support, the court order shall provide for the child’s health care needs, which would normally include health insurance if available to either parent at a reasonable cost.

Affidavit of financial means.

The Affidavit of Financial Means shall be used in all family support matters. The trial court shall require each party to complete and exchange the Affidavit of Financial Means prior to a hearing to establish or modify a support order.

Deviation considerations.

Relevant factors. Relevant factors to be considered by the court in determining appropriate amounts of child support shall include:

a) Food; b) Shelter and utilities; c) Clothing; d) Medical expenses; e) Educational expenses; f) Dental expenses; g) Child care; h) Accustomed standard of living; i) Recreation; j) Insurance; k) Transportation expenses; and l) Other income or assets available to support the child from whatever source.

Additional factors. Additional factors may warrant adjustments to the child support obligations and shall include:

a) The procurement and/or maintenance of life insurance, health insurance, dental insurance for the children’s benefit;
b) The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g. orthopedic shoes, glasses, braces, etc.);
c) The creation or maintenance of a trust fund for the children;
d) The provision or payment of special education needs or expenses of the child;
e) The provision or payment of day care for a child;
f) The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; and
g) The support required and given by a payor for dependent children, even in the absence of a court order.

Abatement of support during extended visitation.

The guidelines assume that the noncustodial parent will have visitation every other weekend and for several weeks during the summer. Excluding weekend visitation with the custodial parent, in those situations where a child spends in excess of 14 consecutive days with the noncustodial parent, the court should consider whether an adjustment in child support is appropriate, giving consideration to the fixed obligations of the custodial parent which are attributable to the child, to the increased costs of the noncustodial parent associated with the child’s visit, and to the relative incomes of both parents. Any partial abatement or reduction of child support should not exceed 50% of the child support obligation during the extended visitation period of more than 14 consecutive days. In situations in which the noncustodial parent has been granted annual visitation in excess of 14 consecutive days, the court may prorate annually the reduction in order to maintain the same amount of monthly child support payments. However, if the noncustodial parent does not exercise said extended visitations during a particular year, the noncustodial parent shall be required to pay the abated amount of child support to the custodial parent.

Arkansas Divorce Definitions

This collection of definitions will help clarify some unique characteristics to the Arkansas Divorce laws, process and paperwork which is filed with the court.

Filing Party Title:
Plaintiff

The spouse who will initiate the Divorce by filing the required paperwork with the court.

Non-Filing Party Title:
Defendant

The spouse who does not initiate the Divorce with the court.

Court Name:
In the Circuit Court of _____________ County, Arkansas _____________ Division

The proper name of the court in which a Divorce is filed in the state of Arkansas. Each jurisdictional court typically has a domestic relations or a family law department or division.

The state run office devoted to enforcing existing child support orders and collecting any past due child support.

Document Introduction:
In Re the Marriage of:

The lead-in verbiage used in the legal caption or header of the documents filed with the court. The introduction typically prefaces both spouse’s names.

Initial Divorce Document:
Complaint for Divorce

The title and name of the legal document that will initiate the Arkansas Divorce process. The filing spouse is also required to provide the non-filing spouse a copy of this document.

Final Divorce Document:
Decree of Divorce

The title and name of the legal document that will finalize the Arkansas Divorce process. This document will be signed by the judge, master, or referee of the court to declare your marriage officially terminated.

Clerk’s Office Name:
County Clerk’s Office of the Superior Court

The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.

Legal Separation:

Legal separation may be granted for the following reasons: a) Impotence; b) adultery; c) confinement for incurable insanity or separation caused by mental illness for a period of 3 years; d) conviction of a felony; e) willful desertion for 1 year; f) cruel and inhuman treatment which endangers the life of the spouse; g) personal indignities; h) habitual intemperance (drunkenness) for 1 year; i) commission and/or conviction of an infamous crime; j) voluntary separation for 18 months; and k) nonsupport whereby the spouse is able to provide support but willfully fails to provide suitable maintenance for the complaining spouse.

[Arkansas Code of 1987 Annotated; Title 9, Chapter 12-301].

Property Distribution:
Equitable Distribution

The applicable Arkansas law that will dictate how property and debt is to be divided upon Divorce.

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