Divorce, Child Custody, Visitation, Child and Support in Arkansas
*** Disclaimer: The following is general information regarding divorce, child custody, visitation, and child support. This material is not legal advice and does not cover all issue that may arise by the separation of parties or the filing of divorce. You should personally visit with an attorney if you are considering a divorce, child custody, visitation, child support, a modification of a custody and support arrangement, or any other legal action.
Divorce is the most common form of marriage termination, other than death of a spouse. A divorce terminates an existing marriage, allows the parties to remarry, and determines the rights against each other following the marriage.
EFFECT OF DIVORCE
The effect of divorce is to terminate the marriage between spouses as of the date that the judgment of divorce is granted in Court. Following an absolute divorce, the spouses are free to remarry. At the time of divorce, the Court may make other determinations regarding the children of the marriage and the financial affairs of the parties, including a distribution of property as well as an allotment of debt.
HOW A DIVORCE IS OBTAINED
In Arkansas, a petition must first be filed with the Court in order to begin the divorce proceedings. If the matter is uncontested, you and your spouse will reach an agreement and that agreement will be set forth in a document to be drafted by your attorney. After all the signatures have been obtained, you and a witness of your choosing will appear in Court to have the matter finalized. In the event that no agreement can be reached between you and your spouse, a hearing will be necessary to determine the issues involved in your divorce on a temporary basis. Following, a request will be made for a final hearing date and that date will be assigned based on the availability of dates on the Court docket.
RESIDENCE NECESSARY FOR DIVORCE ACTION IN ARKANSAS
In order to be eligible for a divorce in Arkansas, you must be a residence of the State of Arkansas for at least sixty (60) days prior to the filing of your divorce petition with the Court clerk. After filing the petition, you must also wait a minimum of thirty (30) days before the divorce can actually be granted regardless of when you and your spouse entered into an agreement disposing of all issues. If one of the issues in your divorce is the custody of minor children, there may be other factors to consider to determine the proper place for you to file your divorce action and you should discuss this with your attorney.
DISTRIBUTION OF PROPERTY
In Arkansas, the presumption is that each spouse is entitled to one-half ( = ) of all marital property. Property includes real property, personal property, stocks, bonds, life insurance policies, retirement plans, the kitchen stove, the lawn mower and almost anything else of value. Marital property is defined as that property acquired by either party during the marriage with some exceptions. Exceptions may include property or items of value received as a gift or inheritance, property acquired prior to marriage, and property excluded by valid agreement between the spouses for example. The equal split of property is a presumption and the court may make an unequal distribution of marital property if the facts and circumstances of the case justify an unequal split.
SPOUSAL SUPPORT AND ALIMONY
Alimony is allowed under Arkansas Law. It is determined either by agreement of the parties or by a judge if the circumstances exist which warrant the award of alimony. The amount of Alimony is calculated similar to child support as described below.
Prior to the current standard, custody of minor children in Arkansas begin with a consideration of the "tender years doctrine". The "tender years" doctrine basically set forth the presumption that children under a certain age should remain with the mother in the event of separation or divorce. However, that presumption has been put aside and both mother and father begin a divorce action on a level playing field. The fundamental standard that the court applies in determining initial custody issues is the "best interest of the child". In determining what is in the best interest of a child(ren), the court will consider the overall situation of the child(ren) and the current circumstances including the behavior of the parents. Among other factors, the court may consider what custody arrangement would assure the frequent and continuing contact of the child(ren) with both parents and which parent is more likely to allow the child(ren) frequent and continuing contact with the noncustodial parent. At a minimum, the child(ren) should have access to both parents, the residential status of the child(ren) should be stable and safe, and the child(ren) should have adequate access to basic necessities. Issues of custody should be discussed in detail with your attorney.
CHILD CUSTODY RELATED ISSUES
Other considerations when custody is an issue may include payment of medical insurance for child(ren), payment of medical bills of child(ren) not covered by insurance, allocation of dependents for tax purposes, payment of college tuition and expenses, provisions for child(ren) with special needs or conditions, provision requiring life insurance policies for the benefit of the minor children and restraining orders when necessary.
Visitation addresses a noncustodial parents rights to see a child(ren). The parents have an opportunity to develop a visitation schedule if both are agreeable subject to court approval. If the court is asked to determine a visitation schedule, the court is free to develop any visitation schedule which it determines to be in the interest of the noncustodial parent and in the best interest of the child(ren). Most districts and judges have a standard visitation which they award if there are no special circumstances. However, if special circumstances exist such as one parent living in a different state or the cost of transportation for visitation prohibits a normal schedule, the Judge may deviate from a standard visitation schedule and develop a visitation schedule intended to best serve the interest of all. Visitation can be restricted and supervised if the safety and welfare of the minor child(ren) are in jeopardy.
Child support is basically determined by considering the needs of a child(ren) and the ability of the noncustodial parent to provide the support. Arkansas has taken this determination one step further in that the Arkansas Supreme Court has developed child support guidelines which is intended to take these considerations in mind when determining a child support obligation. It is presumed that the guidelines will be followed unless the court can justify a deviation. Basically, the guidelines consider the income of the noncustodial spouse and the number of children on which the noncustodial spouse is obligated to pay support. Income for the purposes of determining support is 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 federal and state income tax, FICA withholding, medical insurance paid on dependent child(ren), and support being paid for other dependents. If a noncustodial spouse does not have a verifiable income, an income may be imputed for the purposes of establishing support.
COST OF DIVORCE / CUSTODY / VISITATION / CHILD SUPPORT / MODIFICATION
There are certain costs involved with any legal action which are in addition to the attorney's fee. In a truly uncontested divorce, your cost may only be the filing fee of $100.00 which is paid directly to the Court clerk. However, if the matter is contested or if your spouse cannot be located to sign an agreement, other costs will be incurred. Such costs included witness fees, service of process fees and fees for publication of notices in local newspapers. The exact cost of a contested matter is difficult to calculate as it is based on actions that are different in every case.
There are basically two ways that most attorneys charge retainer fees for divorce / custody / visitation / child support / modification type actions, contested and uncontested. The terms contested and uncontested are not legal terms but are terms used by attorneys in determining what type of retainer to charge for an action. Normally, an uncontested matter is when one party hires an attorney and the attorney drafts the agreement between the parties as well as the Order for the Court to sign. The other party is normally not represented by an attorney and timely signs and returns the agreement. The attorney and his client appear in Court and have the matter finalized. A contested matter is normally defined as one where the other party fails or refuses to sign an agreement, hires an attorney or cannot be located for the purpose of executing an agreement. The fees for such actions vary and are based on the approximate time an attorney will spend working on your case. You should visit personally with an attorney to discuss your case so that a fee can be determined based on the issues and complexities of your case.
MISCELLANEOUS ISSUES RELATED TO DIVORCE, CUSTODY, VISITATION, CHILD SUPPORT AND MODIFICATION
Paternity: Paternity is an action to determine the identity of the biological father of a child born to a mother who was not married. A paternity action may also be brought to exclude one from paternity. You must contest paternity at your first notice that a child may be yours or your could waive the right to contest a finding of paternity later.
Modification of Custody / Visitation / Support: Custody, visitation, and support are modifiable after an Order is entered subject to some exceptions. However, for a change in custody or visitation, the party want the change must prove that the modification is in the best interest of the child(ren) AND that there has been a substantial and material change in circumstances warranting the modification. To modify child support, it may be necessary to prove that the noncustodial parent's gross income has increased 20% or more than $100.00 since the last order of support.
Contempt Actions: Unfortunately, not all parents and spouses follow the directions of the court. If a parent or spouse fails to comply with matters relating to custody, visitation, and child support it may be necessary to file a contempt action to gain compliance consistent with the court's order.
** The above is very basic information regarding a divorce and related issues but is not a substitute for proper representation by an attorney. More specific questions regarding divorce, custody, visitation, support and other matters can be referred to my office.