OMG Quick Divorce Guide By: Aaron D

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OMG Quick Divorce Guide By: Aaron D. Heller and W. Lance Owens

1 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Table of Contents

Introduction ...... 3

Marriage in Arkansas ...... 4

Annulment...... 6

Issues Concerning Engagements...... 7

Pre-Marital Agreements ...... 8

Separation ...... 10

Separate Maintenance ...... 13

Divorce From Bed and Board ...... 15

Reconciliation Agreements ...... 16

Uncontested Divorce ...... 17

Contested Divorce ...... 20

Grounds for Divorce ...... 24

Family Law Issues Concerning Children ...... 26

Division of Assets ...... 34

Alimony ...... 39

Before Trial ...... 41

Trial ...... 47

Post-Trial...... 49

2 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Introduction

Courts were around for a long time before the United States of America or Arkansas were ever imagined, and they exist for a very important purpose: to prevent private citizens from seeking self-remedies to personal conflicts. Part of you may ask, “well, why is that necessary, why shouldn’t we be able to decide these things on our own?” The answer is that you can! At almost any point that you and another person can come to an amiable agreement, you can avoid the courts. Courts exist to resolve conflicts when a personal, amiable agreement is not possible. They exist in part to prevent those who are physically or financially stronger from trampling over the rights of the weaker (although, unfortunately, this still happens). They also exist in part to obtain a binding resolution to arguments when an agreement between the persons involved is impossible.

Family Law issues, such as divorce, are some of the most common legal issues that you may face as a law-abiding citizen. Being forced into a courtroom and having your life criticized is not an enjoyable experience, but it is usually necessary. When relationships fall apart, personal emotions can overwhelm any chance of a rational resolution to legal disputes. Whether the argument is over something as impersonal as a television set or as vital as custody of a child, the courtroom is the final destination for many relationships.

This Guide was written as a general explanation of the issues that you may face during a divorce and some of the processes that you can expect to experience. It was designed to provide basic answers and explanations for some of the most common questions that we are asked as Family Law attorneys. You may not know the correct terms for what you are fighting about, but these issues are broken into broad sections covering the most common Family Law issues.

And as you can imagine, nothing written by an attorney would be complete without a disclaimer: The issues discussed in this guide are published as a general overview of common family law issues. They are not intended to take the place of legal advice and the publication of this guide does not create an Attorney-Client Relationship between the authors and the reader. We highly recommend that you go beyond the pages of this broad outline of family law issues and speak with an attorney to inform yourself of your legal rights.

3 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Marriage in Arkansas

Marriage, in informal terms, is the commitment between two people to share their lives with one another. Marriage is also a legal construct. Arkansas defines marriage as a consensual civil contract between two people. Although Arkansas has not established what the scope of that contract is, it is generally recognized as a social agreement to support one another.

Marriage, as a legal construct, bestows a vast number of legal benefits that may be unavailable to unmarried persons, such as tax exemptions and deductions, additional spousal benefits from government programs, homestead rights, and even spousal privilege in criminal matters. Marriage bestows rights in property that may not have otherwise existed. The right of dower and curtesy provide property claims in probate estates even if a Will otherwise denied a spouse any inheritance. Property may be titled in the name of husband and wife as tenants by the entirety. A spouse may also obtain rights in purchases, income, and savings during a marriage.

Marriage is a fundamental right and a basic liberty that is protected by the Fourteenth Amendment to the Constitution of the United States. In 2004, Arkansas amended its constitution to restrict marriage to unions between one man and one woman. Furthermore, the 2004 amendment prevented the recognition of civil unions that provided equal legal status to unmarried individuals, specifically same-sex couples. In 2015, the Supreme Court of the United States held that these restrictions were in violation of federal constitutional protections and determined that these restrictions were unenforceable.

Although those restrictions on marriage are no longer enforceable, other restrictions are legal. Marriage is still limited to two individuals, effectively prohibiting bigamy and polygamy in Arkansas. Marriage is also forbidden between close relatives. Such marriages are void and subject to criminal penalties.

The state government is permitted to create other requirements for a marriage to be valid.

Marriage must be consensual. Both parties must agree to the union. If one of the parties agreed to the marriage through force or fraud, the marriage is void.

Individuals who desire to marry must have the physical and mental capacity to marry. Mental capacity is necessary because consent is required. If a person cannot comprehend the consequences of the decisions, consent is not possible. Physical capacity is necessary because incurable physical impotence is grounds for annulment. A lack of physical or mental capacity renders a marriage void.

Otherwise, any two individuals may marry without parental consent after the age of 18. Marriages between people who are not old enough to be legally married are voidable. Younger individuals may marry, however, with the consent of their parents or if one of the parties is pregnant.

4 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016

Any person seeking to be married in Arkansas must obtain a marriage license from the county clerk of any county in the state. A county clerk is prohibited from issuing a marriage license that is otherwise barred or to any person who is visibly intoxicated. Marriage licenses may have waiting periods when one or both of the parties are under the age of 18 and need to prove parental consent.

Marriage must be solemnized in front of a qualified person, such as an ordained minister, judge, or Justice of the Peace. Generally, the person who solemnizes the marriage will sign the marriage certificate, which is then filed.

In a few other states, two people who have lived together for a long period of time and meet other requirements can be considered married without a formal license or ceremony. This is known as a common law marriage. Common law marriages are not recognized within Arkansas. Arkansas will, however, honor the legal status of a common law marriage from other states upon proof of that the relationship satisfied the other state’s common law marriage requirements.

Arkansas created another special type of marriage called a Covenant Marriage. This is a statutory marriage between a man and a woman in which both parties specifically contract that their marriage is a lifelong commitment. A Covenant Marriage requires that the parties attend special counseling and sign a declaration in front of a notary public. Married persons who did not have a Covenant Marriage may take steps to convert their traditional marriage into a Covenant Marriage.

The Covenant Marriage places limitations on the availability of divorce. It limits the grounds of divorce and may require that the parties complete authorized marital counseling before certain grounds for divorce are available. It also limits the reasons that one spouse may sue his or her spouse and restricts the procedures for obtaining orders or decrees without the other parties’ participation in the proceeding.

The restriction of a Covenant Marriage to a man and a woman has not been challenged.

Although it may seem obvious, if you get married, you must obtain an annulment or divorce before you can marry a different person. A contractual separation is not a dissolution of a marital status and is not enough to permit a subsequent marriage. Divorce can only be granted when grounds for divorce are proven.

Attorneys do not usually get involved in marriage issues unless a person is looking to get a marriage annulled or an order to obtain a divorce. If you have been denied a marriage certificate, however, and you believe that you have been wronged, or if you have questions about Covenant Marriages, you should contact an attorney to ask about your rights and obligations. Annulment

5 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 In limited circumstances, an annulment is available to dissolve a marriage without the need for a divorce in Arkansas. This is a statutory right and the grounds for annulment are specific and narrowly applied.

As stated previously, there are requirements that must be met for a valid marriage in Arkansas. Age, capacity, and valid consent are necessary elements of a marriage. If one party was not old enough to marry and did not provide parental consent, the marriage can be annulled. If one party lacked physical or mental capacity to be married, the marriage can be annulled. And most commonly, if one of the parties’ consent was obtained by force or fraud, the marriage can be annulled.

Generally, force or fraud is a factual issue. Therefore, evidence must be available to show the court that the consent was the result of threats or lies. For example, Arkansas courts have upheld the annulment of a marriage where a wife lied to the husband about the paternity of an unborn child.

Annulment requires court filings and proceedings. In some situations, annulment may involve issues regarding child custody and child support. To protect your parental rights or if you have questions about annulling a marriage, it is recommended that you speak with an attorney.

6 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Issues Concerning Engagements

In Arkansas, the most common arguments are those over the ownership of engagement rings. There is precedent in Arkansas for a lawsuit to recover a gift that is given in anticipation of a marriage. These are considered conditional gifts. If one party can prove that the gift was conditioned upon the marriage, he or she may be able to recovery the property. If you cannot prove that the gift was conditioned upon some event, the court will likely determine that the gift was immediate and final.

In Arkansas, an engagement can be viewed as a quasi-contract. If it is broken, it can result in a lawsuit. Most states prohibit lawsuits for broken engagements. Arkansas, however, still recognizes lawsuits for losses one party suffers when the other party backs out of an engagement.

The cases are old, but an Arkansas court has held that the party backing out of a promise to marry can be sued for that broken promise where damages can be proven. For example, a woman can recover for money spent preparing for the marriage ceremony and possibly for mental pain and anguish when the man breaches the promise to marry.

7 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Pre-Marital Agreements

People are allowed to enter into contracts prior to marriage that create, restrict, or otherwise modify each of their natural rights in their own property and in the other party’s property, whether it was acquired before the anticipated marriage or during the marriage. These are called Pre-marital Agreements or Prenuptial Agreements. The laws that allow the parties to create Pre-marital Agreements create very specific requirements that must be followed for them to be enforced.

A Pre-marital Agreement must be put into writing and that writing must be signed by both people who are getting married. The signatures must be notarized. The agreement may create, modify, or restrict rights in property, including but not limited to spousal support and alimony. They cannot, however, limit a child’s right to child support.

For example, a Pre-marital Agreement can state that property owned by both parties prior to the marriage shall remain separate, individual, non-marital property after the marriage, even if marital funds are used to pay for or to improve that property. The agreement might also waive a spouse’s right to spousal support or alimony or it could specifically guarantee a certain amount of support or alimony.

The agreement becomes enforceable upon marriage. If the marriage never occurs, the agreement is never effective. Once the marriage occurs, the agreement can be changed, but only in a writing signed by both parties in front of a notary.

A spouse can contest the enforceability of a Pre-marital Agreement in limited situations. As with the marriage itself, the agreement must be consensual. If you can show that the agreement was signed because of force or fraud, it can be set aside by the court.

The agreement can also be set aside if you can show that it was fundamentally unfair and: (a) your spouse did not disclose all of his or her assets and obligations; (b) you did not waive the right for a full disclosure of assets and obligations; and (c) you did not or could not have had reasonable knowledge of the assets and obligations of your spouse.

What does this mean? If you were tricked into signing a Pre-marital Agreement, it can be invalidated. If you had no way of knowing the extent of your spouse’s assets or debts, you did not waive your right to that knowledge, and your spouse failed to inform you or hid the extent of his or her assets and obligations, the agreement can be ignored.

Recently, the Supreme Court of Arkansas ruled that a disclosure of assets does not have to be exact. An honest estimation of values is sufficient to provide your future spouse with enough information to supply informed consent.

It is recommended that both parties to a Pre-marital Agreement have their own, separate attorney review the agreement with them and advise them of their rights and the impact of the agreement on those rights. When a Pre-marital Agreement contains the

8 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 signatures of both spouses and separate attorneys for each spouse, the court will most likely enforce the agreement, absent proof of force or fraud.

Pre-marital agreements are often challenged and are closely scrutinized by the court in a divorce proceeding. If the agreement is not drafted clearly and carefully, your intentions may not be accurately expressed and the court may interpret the agreement in ways that you did not intend. It is very important that you consult with an attorney when you want a pre-marital or prenuptial agreement drafted or when you have been asked to sign a Pre-marital Agreement.

9 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Separation

Notwithstanding two major exceptions, discussed in the Chapters on Separate Maintenance and Temporary Hearings, the idea of marital separation is generally flexible in Arkansas. Despite what you may see on television shows or hear about from other parts of the country, a traditional Arkansas marriage rarely has a “legal” separation (although Covenant Marriage does!). Additionally, marital separation in Arkansas does not always involve one spouse moving out of the marital home. For example, it is not uncommon for spouses to sleep in separate bedrooms while living in the same household during a divorce proceeding.

The court cares most about whether the two spouses are continuing to live together “as husband and wife.” The reality is that so long as the spouses are sleeping in different beds and are not having sexual relations with one another, the court is willing to recognize that they are not cohabitating as a married couple.

This loose interpretation, however, will only go so far. A married couple in Arkansas can request a divorce based upon the grounds that they have been “separated” for longer than eighteen months. If these are the grounds you are relying on to obtain a divorce, the court will pay a lot more attention to whether or not the two of you have been sharing a home. It is highly recommended that if you are waiting on eighteen months to pass in order to obtain a divorce on those grounds, one of you should move out.

The most commonly asked question that our firm receives about separation is “can you help me with a legal separation?” The answer is Yes and No. There are formal separation agreements that spouses can (and often should) sign in order to establish their rights until a divorce is finalized. If you want to seek police assistance, they will generally require a court order when the issue involves child custody.

Separation Agreements are essentially contracts that you and your spouse enter in which you both acknowledge your rights and agree to set, among other things, child custody, child support, visitation, division of property, and spousal support as the two of you see fit. Once an agreement is signed, it is quasi-enforceable through the court system. A common misconception is that the police will help resolve disputes with a Separation Agreement. Generally, the police will not get involved in domestic matters unless they are shown a clear, unambiguous court order.

The biggest perk related to having a Separation Agreement is that it is admissible proof that your spouse believed that the agreement was fair at the time that it was entered. For issues of custody and visitation, this can be very helpful, or harmful if you are on the other side.

For example, if your spouse signs a Separation Agreement granting you joint custody of your children with equal parenting time, it will be very difficult to explain to the court later that he or she does not think that you are a fit enough parent to have that sort

10 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 of custody or visitation. Likewise, if you agreed to that arrangement, it will be difficult for you to explain to the court why you changed your mind at a later time.

Our firm’s process for drafting a Separation Agreement involves meeting with you to ask several questions about your personal situation. Generally, you should have a good idea of how you and your spouse want to handle the following issues, all of which are discussed in greater detail later in this guide:

• Do you have any children together? • If so, what kind of custody arrangement are you seeking? • Depending on the custody arrangement that you agree on, what visitation is appropriate? • What rules would you like to have in place during visitation? • What is your spouse’s income? • How much child support are you seeking, either based upon the Family Support Chart or whatever amount the two of you can agree to? • Who can claim the children for tax purposes? • How would you like to divide the real marital property, such as houses, land, etc.? • How would you like to divide the personal property, such as cars, furniture, etc.? • How would you like to divide the bank accounts? • How would you like to divide the retirement accounts? • How will the debt(s) be divided? • Are you seeking Spousal support or Alimony?

The following example is probably the most common situation that a married couple with children face when they finally reach the point that divorce is their preferred option:

Alice and Bob have been married for twelve years. They both work and their children are in school. In August, they finally reached the point that they decided that they could not live together any longer, but they thought that a trial separation might be a good idea before they filed for divorce.

Alice called an attorney who agreed to draft a Separation Agreement. Alice and Bob discussed custody, visitation, support, and division of property and debts. They created a list explaining their agreements and Alice brought it to the attorney. The Attorney drafted an agreement and Alice and Bob both signed it.

As you can see, there are a lot of issues that the two of you will need to agree on. If you can reach an agreement, things can be very easy. However, the complexity of dividing your lives after marriage is one reason that a lot of divorces require resolutions by attorneys and judges.

11 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Another question we commonly hear is “will it hurt my chances in court if I do ______during the separation?” The answer to this question is almost always “Yes” and it is almost always more complicated than that simple answer.

The following is a list of some of the questions that are commonly asked:

• Should I move out of our home? • Should I withdraw money from our checking or savings account? • What bills should I pay? • Can he or she take my kids and leave the state? • Do I have to let him or her see the kids? • Should he or she be paying child support if he or she left?

This is a very limited list and many, many more issues arise.

If you are separated from your spouse or are planning on separating, you should schedule an appointment with one of our attorneys to ask any questions that you may have and begin planning.

12 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Separate Maintenance

In our Separation Chapter, we mentioned two exceptions to the fact that marital separation is generally informal, including the Separate Maintenance exception. Separate Maintenance is an equitable concept in which spouses cannot live together, but do not have any grounds for divorce. In that scenario, if one of the spouses can prove to a court that he or she is faultless in the separation, the court may intervene to provide him or her with alimony, child support, child custody, property, payment of debts, etc., until the parties are separated for eighteen months and grounds for divorce are no longer required. The court is not permitted, however, to formally change how marital property is titled.

Consider the following fictional example:

Alice is a stay-at-home mother of two children. She is married to Bob, but Bob moved out last week. Bob worked full time and provided the only financial support for the family. Bob never abused Alice in any way and is a good father, but Bob and Alice grew apart. Bob was offered a job out of town and decided it was best if he took the job and moved out.

Alice is living in the home but she does not have any income to pay the mortgage or the other bills. She also does not have any income to purchase necessities for herself or the children. She has been the primary caregiver for the children since they were born and she is not sure how Bob would be able to take care of the kids without help while he continues to work as much as he usually does to provide the necessary financial support.

In this example, neither Bob nor Alice have clear grounds for divorce (see our Chapter on Grounds later in this guide). Alice clearly needs help paying the bills and providing for herself and the children. She does not have a legal way of forcing Bob to provide financial support, although Bob may be willing. If she believes that she needs to do so, she can file an action for Separate Maintenance and ask the court to order Bob to pay the mortgage and other necessary bills as well as pay child support and possibly spousal support to Alice. The court could also resolve any issues between Bob and Alice regarding custody or visitation issues.

If Alice’s petition is granted, the court’s order could remain in place until Bob or Alice are able to obtain a divorce after the required eighteen months of separation. Any issues about whether the parties should continue the court ordered support would be heard during the eventual divorce hearing.

Another instance in which Separate Maintenance may arise is when one spouse has grounds for divorce, but does not want the divorce (for religious or other reasons). For example:

Cindy discovered that Dennis was cheating on her last week. They got into a fight and Dennis refused to leave. Dennis filed for divorce, claiming that

13 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Cindy treated him with general indignities but failed to mention his own adultery. Cindy does not believe in divorce, but she does not want to continue living with Dennis. She certainly does not want anybody to believe that the divorce was her fault.

In this example, Cindy can answer Dennis’s Divorce Complaint and deny that he has any grounds, or she can counterclaim for Separate Maintenance. Just like Alice’s situation, Cindy may be able to prove that she is entitled to support from Dennis for as long as they are separated but not divorced. If she can prove to the court that Dennis does not have grounds for divorce, the court can grant her Separate Maintenance until eighteen months have passed and Dennis can obtain his divorce without needing to prove any other grounds.

In these scenarios, the orders entered by the court are not flexible and must be followed by both parties. A party that does not follow the court orders face charges for contempt.

If you find yourself in a situation like the examples illustrated above, please contact our office to discuss your options.

14 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Divorce from Bed and Board

Arkansas law has preserved a lesser known relative of the absolute divorce known as a divorce from bed and board. All of the grounds and requirements for absolute divorce apply, but the court does not dissolves the marital union.

In essence, it is a legal separation that goes one step further than Separate Maintenance in which the court can formally divide the ownership of marital property and establish duties of support between the parties. This type of divorce is rare but is sometimes used if the parties believe that they may reconcile or in the limited instances in which the division of marital property serves some separate purpose, such as protection from lenders or qualifications of government benefits.

15 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Reconciliation Agreements

The last two chapters were about separation and Separation Agreements. In those scenarios, the parties are not yet divorced and there is a chance of reconciliation. In situations where reconciliation is an option, the parties might believe that an agreement is important to the chances of the marriage succeeding on the second try.

Much like a Pre-marital Agreement, the Reconciliation Agreement is a contract. Unlike a Pre-marital Agreement, a Reconciliation Agreement is entered into during a marital separation. In a Reconciliation Agreement, the parties agree to modify their rights in lieu of divorce in order to preserve their marriage.

In Arkansas, Reconciliation Agreements can modify marital rights in property in the same manner that a Pre-marital Agreement might be used to do so. This can be used for one spouse to protect himself or herself in the event that reconciliation does not work.

There are public policy concerns with Reconciliation Agreements that have not been addressed in Arkansas. Arkansas law, however, is clear that Reconciliation Agreements are favored because they lead to the survival of marriages that might otherwise end in divorce.

If you have questions about how a Reconciliation Agreement might be practical in your situation, you should contact an attorney to discuss the particular circumstances you are facing.

16 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Uncontested Divorce

The main difference between an Uncontested Divorce and a Contested Divorce is the parties’ willingness to compromise on important issues while living in a hurtful situation. Marriages are entered into with strong emotions and are often ended with stronger emotions. However, if you and your spouse can set aside the differences that led to the divorce for long enough to compromise on custody, visitation, support, and division of property and debts, a divorce can be a quick and relatively painless process.

An Uncontested Divorce occurs when two people make important decisions about whether the high cost of a contested divorce is absolutely necessary or whether some arguments can be set aside in order to save time and money. There will always be some issues that are too important to compromise. If you believe your spouse is unfit to be a parent or cannot be trusted to have unsupervised visitation, you should not compromise on those sorts of issues. The best interest of your children should come before risking their safety to save money.

Arkansas allows spouses to consent to most, but not all, aspects of a divorce. For example, the parties are free to waive some procedural rules (like formal service of process) and are able to circumvent default rules of property division and set custody rights and visitation schedules without substantial intervention of the courts. Other rules, such as proving residency requirements, cannot be waived.

Provided that the two of you can agree on all of the issues that are talked about later in this guide (Custody, Visitation, Support, Division of Assets and Debts, etc.), an Uncontested Divorce can begin and end in 30-45 days, barring delays. Uncontested Divorces also avoid multiple hearings, discovery requests, depositions, and other costly components of a Contested Divorce, resulting in lower costs for both parties.

For our office, and most other attorneys, to do an Uncontested Divorce for the advertised reduced rates, it is absolutely necessary that the parties agree on every issue. This does not mean, however, that both parties are going to get exactly what they want. One of our roles as your attorney in an Uncontested Divorce is to listen to your concerns on the issues that you have to make decisions about and help you decide whether or not a compromise is in your best interest.

An attorney from our office will want to meet with you to talk about the most common issues in a divorce and to discuss whether any uncommon issues are likely to arise in your divorce. After asking our questions, our attorneys will give you an opportunity to ask any questions that you have about the process or about specific concerns or issues.

If you choose to proceed with an Uncontested Divorce, we will draft a Complaint for Divorce, waivers, any agreement that might be required, and a Decree for the judge to eventually sign. Each of these documents play an important role in the process of an Uncontested Divorce.

17 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 In order to obtain any divorce, a Complaint must be filed. The Complaint sets out the basic information about the spouses, the marriage, and any issues that the court may have to decide if the parties cannot successfully agree on everything. It will set out the date of the marriage and the date of the separation; whether any kids were born to the couple or if any are expected; whether child support, spousal support, or both are being sought; and whether there is property or debts to be divided.

The waivers are a vital part of an Uncontested Divorce. They state that the other spouse, the one that our firm is not representing, is aware of what is being filed and has signed all of the necessary agreements and the Decree. The waivers also state that our firm is not obligated to provide the other spouse with notice of a hearing and that the court can approve any agreement and Decree that the spouse has already signed. All waivers must be signed in front of a notary public to prevent the risk of a forged signature.

Uncontested Divorces commonly include a Separation Agreement or a Property Settlement Agreement. This agreement spells out all of the issues in the divorce in detail so that there is no confusion about what is supposed to happen after the divorce. The agreement contains mutual decisions on custody, visitation, visitation rules, support, division of property, spousal support, and any issues that may be unique to your divorce. Not every Uncontested Divorce requires a Separation Agreement. Some marriages are either too short or too simple to require such a detailed agreement. In those situations, a Decree by itself is usually enough to handle all of the issues in one document.

The Decree is the formal court ruling that grants the divorce and establishes the rights of the parties after the divorce. If there was a Separation Agreement, the court will review the agreement, approve it, and make it a part of its own ruling. If a Decree approves and adopts a Separation Agreement, it can be shown to police if you are having a custody dispute.

Once all of these documents are drafted, you will be given an opportunity to review them closely and make any changes that you see fit. Once you approve the documents, they are sent to your spouse. Generally, you can save money by sending them to your spouse yourself. However, if there is a reason that you should not be sending the papers, we can have them formally served to your spouse using a process server.

If your spouse has suggested changes to the papers and you are agreeable to those changes, our office will finalize the documents and you and your spouse will sign them. Once the two of you sign the documents, we will set a hearing so that they can be presented to the court for formal approval and adoption by the court.

A hearing is always necessary, even in an Uncontested Divorce. If the appropriate waivers have been signed, the hearing will only take a few minutes. You will need to appear with one witness (anybody over the age of 18) who can confirm that you have met the residency requirements. Our attorneys will then ask a series of simple questions to prove the basic requirements for divorce, such as residency, a cessation of intimate relations,

18 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 grounds for divorce, and an agreement on how to settle all of the common issues that arise in divorces.

Once the hearing is over, the judge will sign your Divorce Decree. The Decree must be filed in the appropriate county before your divorce is final. Once final, the divorce papers are absolutely binding on both parties and can be enforced with a contempt action if necessary. The Decree can only be changed with future court intervention; therefore, you should never violate those orders without petitioning the court to formally change them.

If you have any questions regarding an Uncontested Divorce, please call our attorneys.

19 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Contested Divorce

Not every marriage can end amiably. Some marriages develop strong, negative emotions that overwhelm any possibility of a happy, agreeable resolution. You may have learned or witnessed things about your spouse that prevent you from reaching a compromise on some issues. When the parties cannot resolve their issues, a Contested Divorce is the only option.

Contested Divorces are sometimes settled through negotiation or mediation. Most commonly, however, they are long, drawn out struggles involving many hearings and a lot of time and money. This guide has separate chapters that go into greater detail about individual issues and procedures, and Contested Divorces can be loosely broken into the same disputed issues that we have already mentioned: custody, visitation, support, and division of property and debts. They are often complicated but can be simplified by prior Pre-marital, Separation, or Reconciliation Agreements.

The role of your attorney is to advocate (research, organize, and argue) on your behalf. He or she will have to build a case sufficient to prove many things, such as grounds for divorce; paternity, custody, and visitation for the children; child support; spousal support; and division of property and debts. In a contested action, there will be arguments from both sides as to how to address these issues.

Because our legal system is adversarial (one side is pitted against another to convince the court of his or her own version of the events), the court proceedings become more complicated and the time and resources required to prepare for those proceedings grow with every issue that cannot be compromised. It is the court’s role to listen to each party’s version of the events and then determine which spouse is most credible, what witnesses are the most credible, who is entitled to what relief, and what is in the best interest of any children that are caught in the middle of the divorce.

Again, individual issues will be discussed in greater detail elsewhere, but the following example will provide a common illustration of the issues you might face in a Contested Divorce:

Frank and Gina were married for 21 years. They had two children who are now 11 and 16 years of age. Frank went to school to become an engineer and has worked his way up in his firm over the last decade. Gina was a registered nurse who stayed home after their kids were born to raise the children and maintain the household. Frank and Gina managed several pieces of rental property that Gina’s mother had left her in her Will. These rental properties provided substantial income.

20 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 would pass to her family. As part of that agreement, Gina disclosed all of the property she owned. Frank did not own anything substantial. Gina’s attorney included a provision that neither Frank nor Gina would ask for alimony or separate maintenance if they were ever divorced. Neither Frank nor Gina questioned that provision and they both signed the agreement. After they signed the agreement, Frank and Gina married.

Twenty-one years later, Frank moved out and consulted with an attorney about filing for divorce. His attorney drafted basic Uncontested Divorce papers stating that Frank and Gina would share joint custody of their children; Frank would not pay child support or alimony; Gina can stay in the house until it is sold; and both parties will use the proceeds from the sale of the house to pay off the marital debt and split the remaining profit. The papers did not mention Gina’s rental properties.

Gina did not want to sign anything, forcing Frank’s attorney to serve her using a process server. The papers state that she has 30 days to or that she will be in default. Gina takes the papers to an attorney to review.

Gina does not want her children living with Frank because he works 80 hours per week. Gina tells her attorney that she wants full custody but she wants the kids to be able to see Frank whenever they want. Thinking that the rental properties are already hers, she does not mention the Pre-marital Agreement to her attorney.

Gina’s attorney drafts an Answer and Counterclaim stating that Gina is entitled to full custody, subject to reasonable visitation, and that Frank should pay child support and alimony because he is earning much more than Gina.

Frank’s attorney then files an Answer to Gina’s Counterclaim asserting that the Pre-marital Agreement prevents alimony. Because he believes that that Gina is trying to ignore the Pre-marital Agreement, he amends his own Complaint for Divorce to claim one-half of the rental properties that Gina inherited.

As you can see, a Contested Divorce can quickly spiral out of control and many issues can further complicate things. The attorneys for Frank and Gina have to resolve many issues including:

• Who will have custody of their children? • What will the visitation schedule be like? • What child support will be ordered? • Is Gina entitled to alimony? • Is Frank entitled to part of the rental properties? • Will the marital home have to be sold?

21 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 • If so, where will Gina live?

At the same time, if Frank and Gina get angry at one another, they may partake in a series of petty behavior designed to aggravate and hurt each other. Gina may empty the couple’s savings account. Frank may stop paying the utility bills for the marital home. Gina may prevent Frank from seeing the kids.

As these emotions run hotter, it becomes less likely that either side will ever compromise. That means the attorneys will have to prepare for hearings and a trial. Every single factual issue that is disputed must be researched. Discovery will be sent and depositions may be held. Private investigators may be hired. One party may accuse the other of drub abuse and order drug tests.

First, your attorney will draft the initial pleadings. You will need to review them before they are filed. Then, you will participate in some less formal negotiations with your attorney and your spouse or his or her attorney to see if a settlement is still possible.

Second, if settlement is not possible, a temporary hearing will be set. Temporary hearings are explained in greater detail later, but they are the first, and probably the most important, pre-trial hearing that you will have. You and your attorney will need to build your absolute best case in a relatively short amount of time. Temporary hearings are limited in time and scope; therefore, your attorney will need to prepare you and your witnesses for quick, concise, and efficient testimony. Once your allotted time in a temporary hearing runs out, you cannot make more arguments. A court’s decision at a temporary hearing is often a great indicator of what the final trial will be like.

After a temporary hearing, your attorney will send written discovery questions and requests for your spouse to produce certain evidence that might be helpful to your arguments. Likewise, your spouse and his or her attorney will probably be doing the same thing. You will have to work with your attorney to answer their discovery and object to the questions and requests that you disagree with.

If written discovery does not provide the right information, or if your attorney believes that he or she can cause your spouse to lie about something, he or she may request a deposition. A deposition is an oral interview in which questions are asked and answered under oath. Depending on the number of witnesses involved, there may be a need for multiple depositions.

Your case may involve third parties who are generally cooperative with divorces. Counselors, doctors, teachers, police officers, etc., may have played a small part in the drama of your marriage and each of them may have important testimony. You are prevented from testifying as to what THEY would have said. Therefore, your attorney must obtain their testimony, either in person through subpoena, or by deposition.

During this process, you and your spouse may resist the Temporary Orders of the court, which can result in petitions for contempt and subsequent hearings on those issues.

22 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 All of these things lead to more conflict and more fighting and more arguments. Furthermore, the legal fees grow each and every time one spouse gets mad at the other. In the end, a Contested Divorce can drag on for more than a year and get very expensive.

The Chapters after this go into great detail about these issues and the procedures necessary for your attorney to take your Contested Divorce to trial and beyond. This guide is not a replacement for legal advice and is only a general overview of some of the issues that arise in a divorce. This guide should be viewed as a general explanation of exactly why you should consult an attorney and should never be viewed as a replacement for legal advice from an attorney familiar with your specific situation.

23 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Grounds for Divorce

The issue that is most often overlooked by parties in a divorce is grounds for divorce. One spouse typically assumes in a divorce that he or she has a right to the divorce. This, however, is not necessarily true. In fact, Arkansas law is very clear that an inability to get along or live together, by itself, is not a ground for divorce.

On television, you hear terms like “irreconcilable differences” and you may assume that the same terms apply in Arkansas. That is incorrect. Arkansas is a “Fault” state, which means that you must prove fault in order to obtain a divorce. The only no-fault grounds that exist in Arkansas are (1) separation without cohabitation for greater than eighteen (18) months; and (2) incurable insanity with three years separation. Otherwise, grounds in Arkansas fall within the following categories:

• General Indignities: the behavior of your spouse rendering your life intolerable and causing you to seek a divorce. On the mild side of examples, this can include persistent verbal abuse that the other party refused to cease. Other examples include excessive drinking or drug use, inappropriate relationships with people outside of the marriage, and physical abuse. These grounds comprise the vast majority of divorce actions in Arkansas.

• Adultery: if your spouse had sexual intercourse with another person during your marriage, you can get divorced. The difficulty with pleading adultery is finding a witness to corroborate the grounds. Generally, the only people to witness the infidelity are your spouse and the boyfriend or girlfriend. Both may deny the act or refuse to cooperate. For this reason, it is common to plea general indignities and part of the facts supporting this claim may reference infidelity.

• Felonies: if your spouse is convicted of a felony, you can seek a divorce. This is commonly plead as general indignities although it exists as separate grounds for divorce.

• Cruelty: if your spouse is so cruel to you as to cause injury of illness, you can request a divorce on those grounds. Again, behavior similar to this is typically plead as part of general indignities but stands as its own grounds.

• Habitual Drunkenness: if your spouse is unable to resist the temptation of alcohol, you may be entitled to a divorce. Yet again, persistent abuse of alcohol is commonly used to establish general indignities.

• Willful Neglect or Failure to Support: if your spouse stops supporting you, you can seek a divorce. This can be another difficult cause for divorce to prove. Sometimes a court will find that living under the same roof is sufficient to find some measure of spousal assistance or support. You might often see these grounds combined with a reference to abandonment because a spouse will have left the home and ceased any measure of support.

24 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016

• Impotence: if your spouse was impotent when you married and is still impotent, you can use the impotence as grounds for divorce.

Generally speaking, a third party must corroborate your grounds for divorce, meaning that your testimony alone is not enough to prove grounds. Corroboration can be waived in an uncontested divorce, but is always required in a contested divorce.

There are defenses to a Divorce as well, which must be considered if your spouse refuses to accept responsibility for the failed marriage. In our Chapter on Annulment, we discussed some of them, such as the marriage was void from the start, lack of capacity or consent, incest, bigamy, or polygamy. Some other defenses include:

• Consent: essentially, the argument is that you consented to the behavior. For example, if a couple is sexually open, but the marriage later fails, one party may claim that the other party cheated. However, if the other party can prove that there was consent or encouragement of the extramarital relations, then that may be a defense to the divorce.

• Forgiveness: if your spouse committed an act that would provide grounds for divorce, but then after you had knowledge of that act, you resumed intimate marital relations, the court may decide that you forgave the act.

• Collusion: if the court believes that the grounds were committed with both parties’ knowledge, for the sole purpose of obtaining a divorce, the court is prohibited from granting the divorce.

The trend in Arkansas has been to permit divorces where it is desired by both parties, although there are laws that prevent collusion. If you successfully contest grounds and prevent a divorce from being ordered, that victory will be short-lived. Once you and your spouse live separate and apart for eighteen (18) months, he or she will be entitled to the divorce without having to prove any other grounds.

Grounds for divorce are necessary and should not be overlooked if you are considering a divorce. If you are unable to prove grounds, you may have spent a lot of time and money to ultimately lose your case. If you have concerns about grounds for divorce or possible defenses to a divorce filed against you, you should speak with an attorney.

25 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Family Law Issues Concerning Children

It’s the little things that come up frequently that can be the hardest. As a parent, you are supposed to have the power to make decisions for your child that you feel are in his or her best interest, but when you’re parenting with an ex, with whom you may or may not have a good relationship, sometimes you have to let them make decisions that go against your own parenting instincts. Sometimes you have to allow them to drive your child in what you believe to be unsafe road conditions. Sometimes you have to force your child to miss birthday parties and sleepovers and sports competitions because they fall on the other parent’s weekend and they won’t switch. That’s very hard.

-- Anonymous Parent

Every divorce has the potential to become messy, but divorces involving children raise more difficult issues. Spouses with children may find themselves fighting over paternity, custody, visitation, child support, insurance, and the hundred other expenses that come with raising children. This Chapter will attempt to break these issues into separate sections so that we can focus in on the specific questions that you might have.

Unwed Parents and Paternity Actions.

Your might be wondering why are we discussing unwed parents in a divorce guide. The answer is because (1) life is messy and (2) unmarried parents fight about custody too.

In Arkansas, if two people are married when a child is born, there is a presumption that the married spouses are the parents of the child. This presumption can be rebutted with proof that another person is the father of the child.

More commonly, two people have a child together without being married. Under the current law, when a child is born to an unmarried mother, the mother is automatically the custodial parent. The unwed father does not have any rights to the child until paternity is established. This is true even if the father’s name is put on the birth certificate.

In either scenario mentioned above, the biological father can petition a court for paternity testing. If the court orders the test, the mother will have to appear with the child for DNA testing. If the paternity test shows that the petitioner is the father of the child, the court will enter an order establishing paternity.

In that same proceeding, the father can try to gain custody of the child or establish visitation rights. To do so, he must (a) prove to the court that he is a fit parent to raise the child; (b) show that he has assumed, or is prepared to assume, his responsibilities as a parent to provide care, protection, and financial support to the child; and (c) prove to the court that it is in the best interest of the child that custody be awarded to him. If the father establishes paternity, but does not argue for custody, custody will be presumed to remain with the mother. If the father later attempts to gain custody of the child, he will have to

26 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 prove the three factors above and show a material change in circumstance since the child was born.

If custody and visitation are not initially awarded, the court will generally establish child support once paternity is established. Child support is discussed in greater detail in another Chapter. The court may also order the father to pay part of the mother’s hospital expenses for giving birth to the child.

A mother can also petition the court to establish paternity. This is usually attempted in order to establish child support. The mother follows the same procedure in which she filed a paternity action asking for DNA testing. Upon establishing paternity, the court will order child support. During these proceedings, the father can counter-petition to establish visitation rights or to fight for custody of the child.

Sometimes, neither parent initiates the paternity action and the State of Arkansas intervenes to establish paternity and initiate child support. Whenever a mother or child receives state benefits, the Office of Child Support Enforcement can file a petition to establish paternity so that a mother can begin receiving child support. The public policy behind this procedure is to create a stream of income for the mother that might prevent the public benefits from being necessary or to repay the state government for benefits already paid.

Custody.

Whether parents are married or not, when paternity is established, the issue of custody is the first issue that will need to be addressed by the courts. There are different types of custody that a court can choose from in order to ensure that the best interest of the child is protected. The types of custody include: (1) Joint Custody, in which parents share equal parenting time and responsibility; and (2) Full or Sole Custody, in which one parent is awarded greater parenting time and rights.

Joint custody is when both parents remain as equally involved in the parenting process as possible, both physically, and legally. In a pure joint custody situation, the parents will share as close to equal parenting time as possible. This may be scheduled in a near infinite number of ways, taking into consideration the schedules of the parents and the child. Most commonly, parents will agree to a two-day or a one-week rotation in which the child lives in both homes a near equal amount of time. As the table below will show, in a two-day rotation, one parent will have Monday and Tuesday while the other will have Wednesday and Thursday. Friday through Sunday will alternate every weekend. The weekly rotation is even simpler. One parent has the child for an entire week and then the other parent gets the child for the next week. The weekly rotation can be customized so that the parent without the child for a given week can have one evening visitation (usually Wednesday) to prevent the parent from spending an entire week without seeing his or her child.

Two-Day Rotation Weekly Rotation

27 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Monday with Father Monday with Father (this week) Tuesday with Father Tuesday with Father (this week) Wednesday with Mother Wednesday with Father (this week) Thursday with Mother Thursday with Father (this week) Weekend Visitation Friday with Father (this week) Weekend Visitation Saturday with Father (this week) Weekend Visitation Sunday with Father (this week)

Legal decisions in joint custody arrangements are something that the parents will have to learn to agree on. Each parent will have an equal say in medical and educational decisions. Each parent is responsible for ensuring that the other parent has equal access to doctors, teachers, records, and all of the other little parts of the child’s life.

Joint custody can, to some degree, be customized between the parents if they can agree on the schedule and responsibilities without requiring the courts to set the rules. Whatever is put in an order, however, is what the court will enforce if the parents cannot cooperate.

A common and perhaps misguided practice in Arkansas is for the court papers to say that the parties have Joint Custody when the reality is that one parent is the primary custodial parent. For example, court papers may state, “the parties are awarded joint custody of the children, subject to father’s visitation as set forth in the attached chart . . .” When you look at the chart, however, it only gives the father every other weekend. On paper, it looks like the parties were granted joint custody, but in reality the mother has full or sole custody, subject to visitation. In these ambiguous situations, the court may need to get involved if the mother wants to do something only a full custodial parent would normally be able to do without court approval, such as move out of the state.

The other common type of custody in Arkansas is Full Custody or Sole Custody. These are essentially the same thing with different names. In this situation, one parent is awarded the bulk of the parenting time and responsibilities. When the court awards one parent full or sole custody, it will generally award the non-custodial parent visitation unless there is a good reason not to do so.

As mentioned herein, there is an initial presumption of custody for the biological mother if the parents are unwed. The father must prove his fitness, show his ability to care and provide for the child, and show that a change of custody is in the child’s best interest. If custody is not awarded to the father at the time paternity is established, the father must also show that a material change of circumstance has occurred since the initial paternity order. This means that the unwed father has an uphill battle from the start.

Custody between divorcing parents where paternity was presumed at birth is no less contentious. In a divorce scenario, the ultimate decision rests on the best interest of the child, regardless of gender.

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The best interest of the child means exactly what it sounds like. The court will determine whether one or both parents would be better suited to keep the child. The court is permitted to make this decision in consideration of many factors, such as:

• The age of the child; • The health of the child; • The child’s need for stability; • The child’s psychological relationship with each parent; • The child’s continued relationship with the other parent, siblings, and other relatives; • The positive or negative impact on changes in the child’s relationships and activities; • The moral fitness and character of each parent; • The parents’ history of conduct; and • The reasonable preference of the child.

In Arkansas, there is a presumption that joint custody is in the best interest of the child. Courts, however, are not entitled to award joint custody in situations where the parents are unable to get along to the extent that it impacts the well-being of the child. For that reason, courts will still award full custody to one parent despite the joint custody preference.

In some instances, the court may find it helpful to appoint an attorney specifically to represent your child. These attorneys are called Guardian Ad Litems. They act in the independent interest of the child and they do not represent either parent in any way. They are appointed in the situations that the court believes that it would be beneficial for either determining the child’s preference absent undue influence from either parent or when the court believes that there needs to be an investigation into his or her relationship with the parents.

For an initial decision about who will get custody of the child in a divorce, the court will weigh the evidence to determine what result is in the child’s best interest. This requires you to exert a large amount of time and energy and to fully cooperate with your attorney. You are your best advocate and you have to fully inform your attorney of all of the reasons why you believe that you should be the custodial parent.

Visitation.

Visitation is defined as the establishment of parenting time for a non-custodial parent. It is designed to promote the growth and maintenance of a healthy relationship between the child and each parent. Visitation frequency can vary greatly depending on (a) the child’s age and health, (b) the distance between the parents, (c) work and school schedules, (d) the conduct of the parents, and to a limited extent (e) the child’s preference.

29 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Like most other aspects of custody, the parents have the initial option to settle visitation issues. If the parents can agree on a schedule, the court will most likely support their decision. The court will intervene and set a schedule if the parents cannot agree. In Arkansas, many judicial circuits have established Visitation Schedules that serve as the default arrangement for most situations. We have included the Second Judicial District Visitation Schedule in this guide for your convenience.

As you can see in the attached Visitation Schedule, the default visitation schedule in the Second Judicial Circuit of Arkansas sets alternating weekend visitation with one mid-week visitation for the non-custodial parent. The schedule also contains a holiday schedule as well as basic rules for parental conduct during visitation.

If you do not like the standard visitation schedule, you should take the factors mentioned above into consideration and create your own schedule. Think about how the visitation will impact your child. If your child is very young or has medical conditions, evaluate how your preferred visitation will impact them. If you live a great distance away from the other parent, think about the travel required and the impact that it will have on you, your child, and the other parent. If the other parent works unusual hours or has to travel for work, think about how the schedule will fit into his or her availability. If your child is in school, think about how that complicates overnight or long-distance visitation. If you and the other parent have trouble getting along, think about where you will want to meet to exchange the child. Sometimes it may be best to have the exchange in public places, such as a Wal-Mart parking lot or a police station.

You should also consider any rules that you believe should be in place to protect your child. The court will almost always impose the following rules:

• No smoking, drinking, or using illegal drugs while the child is present; • No overnight guests of the opposite sex who are not related by blood or marriage while the child is present; and • No talking negative about the other parent while the child is present.

You should also consider who watches the child when the other parent needs a babysitter; whether you need to restrict who the child is permitted to see while in the other parent’s care; and whether you should set restrictions on the other parent’s travel out of state with the child.

If you and the other parent are unable to agree on custody and visitation issues, the court will have to impose those rules on you. The court will do so after you and the other side have had an opportunity to argue why the court should side with you.

Once visitation is established, it must be followed. Visitation rights exist even when the other parent is not exercising them. You cannot stop making the child available for visitation simply because the other parent has not been seeing him or her. You cannot stop visitation because the other parent is not paying child support.

30 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 If you believe that there is a valid reason to stop visitation, call your attorney. If you take it upon yourself to stop visitation without a court order, you will be in contempt of the court’s custody and visitation orders. Failure to abide by the court’s orders can impact whether or not you continue to be the custodial parent. If you believe that you have an emergency situation that should prevent visitation for a given week, you should contact the other parent to try and arrange for a one-time rearrangement of the schedule. For example, if your child comes down with the flu, you should arrange to switch weekends so that your child can stay home and get well. You should document your communications with the other parent so that you have proof of any instance in which he or she refuses to be reasonable. You may still risk contempt if you violate the visitation order, but at least you will have proof that you tried to do the right thing and the other parent did not act in the child’s best interest.

The court can deny visitation. This can be done at the initial custody determination and the same basis for denying custody can be the basis for denying visitation. Again, the court will make the decision based upon the best interest of the child. Visitation can be modified when there is a material change in the circumstances surrounding the custody and visitation arrangement. The best interest of the child is always the primary factor to be considered.

If you believe that the child is being abused in the care of the other parent, you should speak with your attorney and file an emergency action to suspend visitation. You should also report the abuse to the appropriate authorities and keep a record of your report and their findings. If you can prove the abuse, the court will change the visitation to fit the appropriate circumstances of the situation. If you act without court authority, you risk being found in contempt even if you believe that you are acting in the best interest of your child.

Child Support.

Child support in Arkansas is calculated under Administrative Order 10, which establishes how income is calculated and what child support payment is appropriate for a given income. A copy of the Monthly Child Support Chart is attached to this guide. Chart child support becomes a math question based upon the payor’s net income. The rule even explains how to calculate the appropriate net income.

Generally speaking, income is defined as any form of payment due to a person, regardless of its source, after you subtract a few limited deductions. These deductions include:

• Federal and state income tax; • Withholdings for social security, Medicare, and railroad retirement; • Health insurance for children; and • Any presently paid child support obligation by separate court order.

For example:

31 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Bob works for Big Factory, Inc. where he earns $1,500.00 every two weeks. His company automatically deducts the following from his wages:

o $210.00 for federal taxes; o $70.00 for state taxes; o $50.00 for social security and Medicare; o $30.00 for his 401k; o $100.00 for his own health insurance.

Bob can deduct $330.00 from his bi-weekly pay for his taxes and his social security and Medicare withholdings. He cannot deduct his 401k because retirement contributions are not deductible unless he works for a railroad. He cannot deduct his health insurance, because it is not for his children. The court will calculate child support for his children based upon the bi- weekly income of $1,170.00.

If Bob earned commissions or bonuses, the rules provide for how to calculate those as well. If a non-custodial parent is not working, is recently unemployed, or has inconsistent income, there are rules that allow the court to impute income based upon the person’s capacity to earn a wage.

Arkansas courts have jurisdiction to establish the payment of child support from one parent to another. The court has full discretion to establish the appropriate amount, but the court must reference the state child support chart. Any deviation from the chart child support amount must be explained in the court’s order.

The court may consider certain costs involved in raising a child to deviate from the chart. These extra costs include:

• Child care (daycare, babysitters, etc.); • Transportation costs; • Medical and dental expenses; • Special needs; • Recreational expenses; • Insurance costs; • The cost of necessities (food, shelter, etc.); and • The child’s previous standard of living.

The court may also consider other sources of income available to the children, such as a trust fund.

In some instances, the court may determine that child support is not appropriate. For example, in a pure joint custody situation, the court may decide that each parent is financially responsible for all expenses while the child is in his or her care and that child support is not required. This is not mandated, however, and the court may order child

32 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 support in a joint custody arrangement when one party earns substantially more than the other to allow a similar standard of living in each home.

The court should also make a determination regarding the children’s health care needs. As long as the cost is not prohibitive, the court can order the parent paying child support to also pay for health insurance for the children if necessary.

The court can also order the parents to split the medical costs that are not covered by insurance and can order parents to split other reasonable expenses for the child, such as clothing, school costs, and extracurricular programs.

Child support can be enforced if the payor parent fails or refuses to pay. Courts can find a person in contempt if they are not paying child support and can suspend a driver’s license or hunter’s license or even order jail time for the person in contempt of court. The courts can also award judgments for unpaid past child support and that person’s wages or bank accounts can be garnished to recover any unpaid amounts in some circumstances.

Finally, the State of Arkansas will get involved in child support cases in some situations. If a parent or child is receiving state benefits and is supposed to be receiving child support, the Office of Child Support Enforcement will intervene to enforce the child support obligation.

If you have questions about receiving or paying child support, it may be helpful to speak with an attorney. Whatever information you can gather on your income and the income of the other parent will be helpful in determining what child support might be anticipated in your situation.

33 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Division of Assets and Debts

In every divorce, the court is required to divide marital property at the same time that it grants the divorce. The court’s authority to divide marital and non-marital property and grant alimony are tools of equity that are utilized to make the dissolution of a marriage financially equitable. The court has broad discretion on how to divide property.

The laws between states can be very different. Some states follow the concept of community property, in which all property owned prior to the marriage is non-marital property and all property obtained during the marriage is marital property—regardless of the source of the purchase. Arkansas is not a community property state. Arkansas follows an equitable division of marital property approach.

Arkansas courts will first determine what property is marital and what property is separate, non-marital property. Then, looking at the totality of the circumstances, the court should divide all assets 50/50, unless equal division would not be equitable.

Separate, non-marital property can be broken down into a few common sources, including but not limited to:

• Benefits received from claims for personal disability or future medical expenses; • Property that was owned by one party before the marriage; • Property that was received as a gift during the marriage; and • Property that was inherited during the marriage.

The presumption is that those types of property are non-marital and will remain with the spouse that originally acquired the property. In limited instances, the court can equitably divide separate property. In these situations, the other spouse contributed to the payment or helped increase the property’s value in some tangible way. Also, where separate, non-marital property was owned during a marriage, it may be necessary for the owner to prove that it retained its non-marital status throughout the marriage. It is possible for separate, non-marital property to be commingled or mixed with marital property to such a degree that the court will determine that it became marital property.

Marital property is a little bit easier to define and identify. It is all of the property acquired during the marriage, regardless of how it is titled, with the exceptions listed above for separate property.

The status of the property may be modified by agreement of the parties. Pre-marital Agreements, Antenuptial Agreements, and Reconciliation Agreements may legitimately restrict the court’s authority to equitably distribute property. The agreements may define whether property is marital or non-marital and may exempt some normally marital property from division. The opposite is true as well; the agreement may subject normally non- marital property to the court’s division powers.

34 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 What does “equitable but not necessarily equal” mean? It means that if one party has a large amount of non-marital property, and the other spouse does not, the court could award all of the marital property to the spouse that would otherwise have nothing so that in the totality of the circumstances, the parties come out as close to equal as possible. Because the court cannot distribute the non-marital property, it divides the marital property “unequally” as to effectuate a fairer outcome.

The court makes its decision as to what is “equitable” based on the following established factors:

• The length of the marriage; • The earning capacity and sources of income of the parties; • The age and health of the parties; • The vocational skills and employability of the parties; • The needs and debts of the parties; • The ability to acquire new assets and income; • The contribution of each party to the accumulation of property; and • The tax consequences of a division of property.

For example, lets return to Fred and Gina’s divorce scenario from Contested Divorce Chapter:

Gina inherited the rental property before she married Frank. In order to protect that property and keep it in her family, she wanted Frank to sign a Pre-marital Agreement stating that he would make no claim of ownership over that rental property and that if Gina passed away before Frank, that it would pass to her family. As part of that agreement, Gina disclosed all of the property she owned. Frank did not own anything substantial. Gina’s attorney included a provision that neither Frank nor Gina would ask for alimony or separate maintenance if they were ever divorced. Neither Frank nor Gina questioned that provision and they both signed the agreement. After they signed the agreement, Frank and Gina married.

35 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 sale of the house to pay off the marital debt and split the remaining profit. The papers did not mention Gina’s rental properties.

In this example, we mentioned that there were a lot of issues for the attorneys to discuss before a court could grant a divorce. A lot of those issues are relevant to this Chapter on dividing assets.

The court will analyze the factors listed above while considering all of the property owned by Frank and Gina. Some factors come out even, such as age, health, and debts. However, because the marriage lasted 21 years, the division will need to be very equitable.

Frank worked during the entire marriage and Gina only worked for part of the marriage. Arguably, Frank contributed more to the acquisition of any assets. Gina, however, raised the kids, which is viewed as equal contribution. Gina also maintained the household, which permitted Frank to maintain a successful career. The court will have the discretion to decide whether these contributions are considered equal.

The court will look closely at the earning capacity of the parties and the parties’ ability to acquire new assets and streams of income. In our example, Frank has a lucrative career and a high earning capacity. Gina, however, has non-marital rental properties, protected by the Pre-marital Agreement, which create a good income stream. Gina was a registered nurse, but she may need to go back to school or may be unable to work full time if she is awarded full custody of the children. She has also waived any right to alimony in the Pre-marital Agreement.

36 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Viewing all of these factors together, the court will make a decision on how to divide the marital property. This is a close call under the factors, but the court could find that Gina would have been entitled to rehabilitative alimony if not for the Pre-marital Agreement. Because the court can look at the big picture, it might award Gina more of the marital property (unequal division) in order to obtain a more equitable result.

Other types of property can be difficult or impossible to divide. Retirement benefits, pensions, and 401k-type assets might be marital property, or even part marital and part non-marital. The general rule is that contributions to retirement funds by a spouse during the marriage are marital property and should be divided. Contributions to the retirement fund by an employer or by the spouse prior to the marriage are not divided. Retirement accounts are generally divided using a Qualified Domestic Relations Order, which provide the authority necessary for administrators of retirement plans to divide the assets.

Judgments received in personal injury cases can be complicated. You may recall that earlier in this Chapter we mentioned that benefits received for claims for personal disability or future medical expenses are non-marital property. Although this is true, whether or not personal disability or future medical expenses are considered non-marital property must be proven. In some instances, the judgment awarding damages for a personal injury claim does not specifically explain what percentage was for permanent disability or future medical expenses. In those situations, it can be difficult or even impossible to protect a personal injury judgment from division in a divorce. If you are unable to prove that the judgment falls within that exception, the court will most likely view the money or the assets purchased with the money as marital property.

Professional licenses are not divisible as marital property. They are earned and cannot be held by individuals who did not earn them. However, the court can take into consideration the other spouse’s contributions and support that enabled the degree to be earned and can use that as a reason to unequally divide other marital property.

Finally, property that is passed between spouses or is titled in both persons’ names can be viewed as marital property regardless of where it originally came from. For example, an inheritance might have been titled in both spouses’ names, despite having been left to one of the spouses. The court views the act of titling the property in both spouses’ names as a gift.

Real property cannot be physically cut in half and the court will not order a divorced couple to live together on the property after the divorce. Instead, the court will either award the house (and likely the debt owed thereon) to one party or will order the house be sold and any equity be divided equally between the parties.

The court will also divide the debts, but not necessarily under the same guidelines. The court will, however, still view the division of property and debts as a whole, and after considering the totality of the situation and the nature of how the debts were incurred, will determine what allocation of debt is most equitable.

37 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 If you have questions about how the property you own might be divided in a divorce, you need to speak with an attorney. The answers are very specific to the facts in a particular divorce and although an attorney cannot predict how a judge will rule, the attorney can advise you of possible outcomes.

38 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Alimony

Alimony is the award of financial support from one spouse to another. It can be temporary during the pending divorce action or it can be ordered to occur after the divorce is final. Alimony can be permanent or it can be for a set duration. It is awarded in order to provide economic support for a spouse when the divorce will lead to a sharp difference in that person’s ability to maintain their current standard of living.

The theme in Arkansas case law is that alimony offsets the “economic imbalance” between spouses. Fault in the divorce is not relevant to an award of alimony. The primary test is whether one spouse has a need for support and the other spouse has an ability to pay.

Permanent alimony used to be more common because it was less likely that both spouses had gainful employment opportunities or that sufficient assets existed to be divided in order to provide for both spouses after the divorce. It can be paid out over time or in a lump sum.

As it sounds, permanent alimony is “permanent” and will continue indefinitely or until the spouse dies, the spouse remarries or cohabitates full time with a romantic partner, or the court modifies its order to stop the alimony. The default rule that alimony stops when a recipient spouse remarries does not apply if the parties set a different term in an agreement.

The recent trend is toward rehabilitative alimony, which is for an established purpose and duration. It is generally awarded to provide support for a set amount of time so that the recipient can either begin working or can obtain the training or education necessary to begin a new career.

If rehabilitative alimony is sought, the spouse who would be paying the support can request that the court order the recipient to file a rehabilitative plan. The rehabilitative plan should establish the rehabilitative goal and the payment amount and duration necessary to achieve that goal.

Rehabilitative alimony continues until its term ends unless there is a change in circumstance that justifies a modification or termination prior to the original term. If a payor of rehabilitative alimony realizes that the recipient has been misusing rehabilitative alimony or has stopped pursuing the rehabilitative goal, the payor can petition the court to modify or stop the alimony.

As an example, lets return to Bob and Alice, who did not have a Pre-marital Agreement:

Bob and Alice’s divorce has reached court. They have been able to settle most of their issues, but they cannot agree on alimony.

39 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Alice asks the court for rehabilitative alimony from Bob so that she can complete college. She states that without a college degree she could not make enough money for her to be self-sufficient without Bob’s income.

Bob demands and Alice submits a Rehabilitative Plan in which she would attend two years of classes from home in order to complete her degree. She states that she will need tuition and additional income for living expenses while she is taking these online courses from home. She proposes rehabilitative alimony of $2,000.00 per month for the duration of two years in order to support her while she finishes college.

The court agrees that the rehabilitative plan is reasonable and orders Bob to pay Gina rehabilitative alimony of $2,000.00 per month for twenty-four months.

Nine months later, Alice starts dating Hank. Hank is a wealthy businessman who is worth millions. Alice drops out of school and starts spending the night with Hank when the children are visiting Bob.

Bob petitions the court to terminate the alimony. He makes two arguments. First, he argues that alimony should be terminated because Alice is dating and occasionally staying the night with Hank who is filthy rich. This results in Alice having a higher standard of living than Bob. Second, Bob argues that Alice dropped out of school and the rehabilitative alimony is being wasted.

The court will reject Bob’s first argument. The fact that Alice is dating Hank and may occasionally stay the night at his house is not a remarriage that would terminate alimony. The fact that Hank is filthy rich is not relevant either. As unfair as it sounds, former spouses often end up dating other people without marrying them. While this can create challenges with custody and visitation, the court generally does not care how it impacts child support or alimony.

However, the court will likely agree with Bob’s second argument. The Rehabilitative Plan accepted by the court was based on the fact that Alice would go back to school and that she would be unable to support herself for two years while she became self-sufficient. By dropping out, Alice has abandoned that plan. That change in circumstance permits the court to revisit alimony and the court will likely terminate alimony because Alice has not honored the plan.

Keep in mind that alimony can be waived in an agreement between the parties, such as a Pre-marital Agreement or a Reconciliation Agreement. In these situations, the court may be limited by the agreement in what it can do to provide for one party in the divorce.

You should speak with an attorney if you have any questions about alimony.

40 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Before Trial

A Contested Divorce is basically just one big drawn out argument. The attorneys work to build the strongest argument with the best support, but a lot of arguments in divorces boil down to “He Said vs. She Said.” In those situations, there is rarely one piece of undeniable evidence that wins the argument. The parties typically settle those cases because the outcome is clear.

The reality is that you will have to assist your attorney in creating your arguments. Your cooperation consists of organizing your own feelings and getting them down on paper or in an email so that your attorney can understand your motivations and your arguments. Another part of the process consists of identifying evidence that you believe will support your argument.

At the same time that you and your attorney are building your arguments, you will be constructing a defense to the other side’s arguments. That will require the same cooperation so that your attorney can understand, develop, and find support for your counter-arguments.

Building your counter-argument requires investigation into the other side’s arguments. Written discovery will need to be sent, reviewed, and supplemented. At the same time, the other side will be sending you written discovery that you will have to answer and requests for documents that you may have to produce.

There are also some instances that hearings will be necessary before you ever get to trial on the main issues. In other words, temporary hearings, contempt hearings, and pre- trial motion hearings might be required before the divorce itself is ever heard.

Throughout all of this preparation, there are rules of evidence that restrict what you can tell the judge and what evidence is appropriate for you to show the judge. This Chapter will break down these pre-trial procedures and issues to provide you with a general understanding of the work that has to be done before you go to trial.

Important Rules of Evidence.

In some ways, the entire process of investigating and proving your arguments would be easier if there were not rules restricting what evidence can be presented and who can present certain evidence. In other ways, it is important to understand that these restrictive rules prevent divorce hearings from dissolving into chaos. These rules also make it more difficult for one person to manipulate the court.

There are a lot of rules of evidence that your attorney has to follow, but the most important rules for you to understand are the Hearsay Rule and the Business Record Rule. Both rules are designed to prevent misleading second-hand accounts of information of which you do not have personal knowledge.

41 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 The Hearsay Rule states that a witness cannot talk about things that he or she heard from other people. The court only wants to hear what other people have said from those people directly.

For example:

Alice is preparing for her divorce hearing against Bob. Alice is meeting with her attorney. Alice tells the attorney that Bob’s sister, Jenny, said Bob was a lying jerk and that he had cheated on every girl that he had ever dated. Alice tells her attorney that Jenny’s friend Kelly saw Bob kiss Suzie at the bar a month ago. Alice wants to get on the stand and tell the judge all the bad things that Bob has done.

If true, these are all helpful facts that may prove grounds for divorce. They might even be evidence that Bob has a bad moral character and should not have custody of the kids. Alice, however, cannot tell the judge about any of this. The moment she begins the phrase, “Jenny told me…” the other attorney will jump up and yell “Objection, Hearsay!”

Your spouse’s sister Jenny may have truthfully told you that your spouse was a lying jerk or that she heard from Kelly that your spouse kissed Suzie at the bar, but because other people told you these things, you cannot be the one to talk about them because your information is second or third-hand.

As you can see, this makes things more complicated than you just telling your side of the story. Your attorney will have to call you, Jenny, Kelly, and possibly Suzie as witnesses in order to provide the full story. This is possible, but it requires careful planning ahead of trial.

First, your attorney does not want to go into trial and ask those three people what they saw without already knowing the answer they will give. Therefore, your attorney will want to take their depositions, under oath, so that they know the answer to their questions at trial before they are asked.

Second, Jenny, Kelly, and Suzie may not volunteer to go to court and testify. They may have to be subpoenaed. A subpoena is a legally binding document that requires a person to appear at a hearing or a trial to testify under oath, produce evidence in his or her possession, or both. Subpoenas must be formally served on the witnesses and your spouse and his or her attorney have a right to be notified of the subpoena. Somebody might contest the subpoena and try to have it set aside or quashed.

The Business Record Rule requires you to prove the authenticity and accuracy of records before you can use them as evidence. For example, you may have phone records, bank records, or medical records that would help support your arguments. Unless you can prove that those records were not fabricated, the court will not want to see them. This can be trickier than it sounds.

42 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 For example:

Alice and Bob have a child that requires special medical care. Alice has always been the one to take care of the child, give the child any specific treatment that is necessary, and take the child to the specialists when the child needs medical care. Alice wants to show the judge some medical records to prove that the child has special needs and reflect that Alice was always the parent that accompanied the child and received training on providing in-home treatments. Alice has kept everything that the doctors gave her. She provided these records to her attorney.

Again, if the attorney reviews the records and they support Alice’s account of the issue, they are very helpful in supporting Alice’s argument. The moment the attorney takes those records from Alice’s home and attempts to introduce them into evidence, however, the other attorney will jump up and yell “Objection, we cannot trust those records!”

Those records will have to be authenticated before the court will accept them into evidence. Your attorney must either get the custodian of records from the doctor’s office to sign an affidavit stating that the records are authentic, or he will have to subpoena the doctor to appear and testify as to what is contained in the records from personal knowledge.

These things are all possible, but take time and preparation. It is important for you to understand that these rules exist and that they are annoying, but essential. Although they make proving your arguments more difficult, they are designed to prevent people from spreading rumors, from misrepresenting what other people actually said or saw, or from lying.

Building an Argument.

It may be clear from the previous section on Rules of Evidence, that there are a lot of procedures and steps to getting a case ready for trial. This section will provide an overview of the most common steps in preparing for trial: written discovery, depositions, and subpoenas.

Written Discovery is usually built around three ideas. First, we want to ask specific written questions about your spouse’s past, present, and future behavior, all of which must be answered under oath. These are called Interrogatories. Second, we want the other side to produce any evidence that they have on hand to support their case and any records that support or confirm their written answers. These are called Requests for Production. Finally, we may want to request the other side to admit certain facts so that we do not have to prove them in court. These are called Requests for Admission.

You can safely assume that you will be receiving something similar from your spouse in a divorce. They are just as motivated to investigate all of the arguments as you are and they are actively building their case against you.

43 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 There are time limits to responding to written discovery. If the other side fails or refuses to answer discovery, the court can compel the responses or punish the other party for failing to answer. Extensions to the deadline to answer are available and the first request for an extension is almost always granted. If you receive interrogatories or requests for production that you do not want to answer, you will have to object to the discovery. Simply refusing to answer will not work.

Once your attorney receives the answers to the written discovery, he or she will be able to start predicting what the other side is going to argue and what the other side thinks that they can prove. The evidence produced should provide an early indication of how well they can support their arguments.

The other side’s answers may be incomplete or they may give your attorney a reason to send more written discovery to ask new or more specific questions. Your attorney may have to send multiple sets of discovery before they are satisfied that they have an accurate picture of what the other side is planning.

Written discovery is vital because it enables your attorney to anticipate arguments and prepare you to defending yourself against whatever accusations may be thrown your way. The basic idea behind trial preparation is to minimize surprises and maximize organized counterarguments.

Requests for Admission are a little different. They are exactly what they are called: a list of allegations that you believe to be true and a demand that the other side admit or deny that allegation. For example, you can state: “Admit that you took $4,000.00 out of an available $4,006.34 from our joint marital bank account on December 1, 2016.” If you wanted to prove to the judge that your spouse cleared out your bank account and left you without any money, a request for admission may provide that proof without wasting time trying to prove it with witnesses and records. Likewise, if your spouse denies it in his response, under oath, and you later prove that he or she actually emptied the account, the court is made aware that he or she lied under oath and that he or she is not trustworthy.

Depositions are a lot like Written Discovery, but instead of being written, the questions are asked in person, under oath. At a deposition, the parties appear with their attorneys and the party scheduling the deposition has an opportunity to examine the witness under oath, just like would be done at trial.

Depositions take place in front of a court reporter who makes a formal record of the entire examination. That written record of the deposition can be used at trial as evidence of whatever was said. One part of the deposition might be used to prove that a witness is lying at trial if he or she changed his or her story. Another part might be used as an admission of some fact that has been disputed.

The other party might want to take your deposition. If that happens, your attorney will prepare you for what might be coming and will be present to object to any inappropriate questions.

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Not every witness will volunteer to appear at trial or at a deposition. Sometimes they will not want to get involved. In those situations, if their testimony is important enough, the attorney will subpoena them. The subpoena stands as a court order requiring their appearance. Subpoenas have to be served on the witness and notice of the subpoena must be given to all parties to the divorce. Again, the court does not want any surprises at trial.

Subpoenas are not all-powerful; they have limits. Arkansas subpoenas are not effective outside of the state borders and there are geographical limitations on how far you can force a witness to travel for a deposition. There are also witness fees that must be paid when the subpoena is served. A party might also object to a subpoena and ask the court to set it aside. This is called an action to “quash” the subpoena. Quash sounds like squash, and that is an accurate description of what it means. If a subpoena is quashed, it is no longer enforceable.

Temporary Hearings.

As you may be starting to see, Contested Divorces do not happen quickly. You may have important issues that have to be decided quickly and you may not be able to sit patiently for months or even years until everybody is ready for trial. In those instances, the court will permit a temporary hearing in order to rule on important issues while the divorce case is pending.

A Temporary Hearing can be looked at as a mini-trial. Each party is limited to 30 minutes of speaking time. In that 30 minutes, your attorney has to make all of your arguments, question every witness needed to support your arguments, and save time to cross-examine any witness the other side calls to argue their case. Thirty minutes is not a lot of time.

This makes it absolutely vital that your best arguments are organized and well- supported before the hearing begins. Your attorney will need to meet with you and your witnesses before the hearing to ensure that everybody has their testimonies organized. Appearing in court is stressful and stress is the enemy of clarity. Only with organization and preparation can you overcome the fog of stress and panic.

The Temporary Hearing will not deal with the divorce itself. Instead, it deals with the common issues within a divorce that need to be temporarily decided while the divorce case is waiting for trial, such as: custody, visitation, child support, possession of property, and alimony.

The more complicated your case is, the more difficult it will be to condense every argument into 30 minutes. You do not have time to call more than 2 or 3 witnesses. Therefore, you must pick your battles wisely.

45 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Every temporary hearing will require proof of the parties’ financial status. This requires both sides to fill out an Affidavit of Financial Means. This document sets out all of the parties’ income, expenses, and obligations in great detail. The affidavit is a sworn statement and carries with it the penalty of perjury. The court will use the affidavit as proof of the parties’ needs or ability to pay when determining child support or alimony. At the temporary hearing, each affidavit is generally used as the party’s primary proof of income or need for support because there is little time to argue about finances.

After the two parties have exhausted their 30 minutes or have rested their cases, the judge will enter a Temporary Order that will set custody of any children, any child support, any alimony, division of any bills, and possession of property, such as the marital home and vehicles. This Temporary Order is enforceable through contempt actions and the police should enforce visitation disputes if the order is clear enough for them to understand it.

The Temporary Hearing may or may not be heard by the judge that was assigned to hear the final divorce. If it is the same judge, you will have a very good idea how the final trial will go. This may help you decide whether it is in your best interest to settle the issues or go to trial.

The judge may also order Mediation. Mediation is a non-judicial procedure in which the parties meet with a neutral third-party, known as the Mediator, to try and work through their disputes. The mediator is impartial, but he will move between the parties to try and circumvent the emotions between spouses that might otherwise prevent rational discussion of the issues. Mediation can be a very effective way to solve marital arguments without waiting on a final trial, but it requires the parties to take the process seriously and compromise with each other.

If you have questions about any of these pre-trial issues, please contact an attorney who will be able to provide more specific information about the process and the timeline involved in preparing a divorce case for trial.

46 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Trial

If the parties took all of the pre-trial steps seriously, the trial itself should be relatively predictable. The witnesses, testimony, and exhibits should be prepared and you and your attorney should be familiar with the major issues and the obstacles that you must overcome to make your argument the most persuasive to the court.

Your necessary witnesses should be present, either by choice or by subpoena. You should know about the witnesses the other side has brought and you should have at least some idea about their testimonies.

The rules of evidence that we were concerned with before trial are still in place, ready to strike any testimony or evidence that does not materialize from the correct source. Correct preparation should minimize any difficulties that these rules create.

Your written discovery and any depositions will have already provided some predictability as to the testimony and the exhibits that will be presented. Any deviation or manipulation of the prior statements can quickly be responded to with proof of that person’s prior statements.

Pre-trial work is all about investigation and anticipation. Trial work is all about organization and narrative. Arguments can be hostile, but narrative is the story that ties the arguments together—that makes sense of the sprawling conflict. In other words, narrative is used as a tool to organize confusing issues for the court.

As the trial begins, the judge may give the attorneys for each side an opportunity to provide opening arguments. These opening arguments are designed to provide an overview of the issues and the law at issue and to provide the judge with a road map of the arguments that each party will make throughout the trial.

Next, the Plaintiff in the divorce action, the party that originally filed for divorce, will present its case first. The Plaintiff will call its witnesses one at a time and the Defendant will be given an opportunity to object to improper testimony or evidence as it arises. The Defendant will also be given an opportunity to cross-examine the witnesses that the Plaintiff calls.

When your attorney calls a witness, it is Direct Examination. When your attorney has a chance to question a witness called by the other side, it is called Cross Examination. When your attorney asks questions of friendly witnesses, it must be in the form of open- ended questions. The questions cannot assume the answer or lead the witness to the answer that the lawyer wants. When your attorney asks questions of hostile witnesses, however, the attorney can ask leading questions, which are designed to get the witness to confirm or deny specific facts. Leading questions are usually designed to be answered with a “Yes” or a “No.”

47 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 These differences in questioning make the attorney’s job more difficult and is the primary reason that your attorney needs to go over your testimony excessively in preparation of trial. Your attorney cannot tell you what to say on the stand and if you do not understand a question or forget the important facts, the attorney cannot testify on your behalf.

The process of calling witnesses and presenting exhibits into evidence is time consuming. Trials can last days, depending on the complexity of the issues, the number of witnesses, and the amount of testimony that is needed to support each argument.

Once the Plaintiff has finished calling all of its witnesses, it will rest its case. At that time, the Defendant can call its witnesses and repeat the entire process for its own evidence.

During the trial, the judge may call for breaks or interrupt witnesses to ask questions. The judge may also stop the proceedings temporarily to deal with objections to testimony or exhibits. He or she may call the attorneys back into his or her chambers to argue about legal, procedural, or evidentiary issues.

During the trial, the attorneys can require that all non-party witnesses sit outside so that they cannot hear what other witnesses are saying. This means that witnesses are less able to collude to support one another’s testimony. It also means that a lying witness is more likely to be contradicted by other witnesses that are telling the truth.

After both sides have finished calling all of their witnesses and have offered all of their exhibits into evidence, the judge may ask the attorneys to provide closing arguments. Much like the opening arguments, these are designed to summarize arguments and provide an organized resolution to the chaos of juggling witnesses and yelled objections.

After the attorneys make their closing arguments, the judge will have to make his or her decision. Sometimes this process is relatively quick. In some situations, however, the judge will take the matter under advisement. The judge may want to take substantial time to weigh the arguments, the proof, and the law before ruling on the matter.

Either way, eventually, there will be a decision as to all of the issues discussed herein. The judge will award some sort of custody to one or both parents. The judge will order child support and alimony or will explain why child support or alimony is not appropriate. The judge will set visitation and will divide property and debts. Throughout the trial, the judge will make findings of fact and conclusions of law to support his or her decisions. All of these decisions form the Divorce Decree. The Divorce Decree becomes the binding decision that both parties must follow until it is modified.

If you have questions about what goes on at trial, simply ask your attorney. Trials can be an intimidating part of your divorce, but your attorney can explain the process to you and prepare you for trial.

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Post-Trial

Life does not always get simpler after trial. The Decree provides stability and resolution to the arguments, but at least one side always leaves feeling like he or she lost something. The emotions that led to the divorce may not have weakened with time, and the divorce itself may have made broken the relationship to the point that the parties cannot get along. In other situations, the aftermath is not so bad. The parties come to a truce of sorts and cooperate with one another to whatever extent is necessary to move forward.

If there are kids involved, you hope for the second outcome. You cannot always get what you want, however, and issues can continue to arise after the divorce is finalized. Sometimes one party will not follow the order and the other party needs to file for a Contempt action. Other times the circumstances that existed at the divorce change so much that the Decree is not fair or appropriate any longer. In some instances, emergencies arise that require immediate court intervention.

Contempt of Court.

Court orders are binding. If you or your ex-spouse violate a court order, Temporary or Final, you are in contempt of court. Contempt of court can result in additional attorney’s fees, modification of previous order to take rights away from you, and even jail time.

A Contempt action is the appropriate way to enforce a court order. If your ex-spouse stops paying child support, sue him or her for contempt. If your ex-spouse is letting his or her new romantic interest spend the night when your kids are present, despite the decree prohibiting that behavior, sue him or her for contempt. You get the picture.

What you do not need to do is stop following the court orders yourself. A failure to pay child support does not give you the right to stop visitation. Likewise, your spouse letting his girlfriend sleep over does not give you a right to stop visitation.

Instead, file an action for contempt. The court will use its authority to correct the behavior or it can modify its order to fix the problem or to stop visitation.

If you act on your own, without the court getting involved, you are likely going to place yourself in contempt of court and open yourself up to a lawsuit from your ex-spouse. The court will not tolerate contempt as a response to contempt.

To file a petition for contempt, your attorney will meet with you to get the facts straight. You will have to sign either an affidavit or a verified petition under oath stating that the facts are true and correct to the best of your knowledge. Once filed, the court will order your ex-spouse to appear and show cause as to why he or she should not be found in contempt. If you prove your case the judge can award you attorney’s fees and will take some action within its power to enforce the order. In some cases, the judge may order jail time for contempt of court. That usually gets the job done.

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Modification and Emergencies.

Sometimes the other side follows all of the orders, but something happens that changes the circumstances to such an extent that the prior orders are no longer fair. For example, if there is a visitation schedule that was set when the parties lived in the same town, that schedule will not make sense if one of the parties moves far away. Maybe the two of you can agree on how to change visitation so it works nicely for everybody. But maybe not.

In that situation, a petition to modify the decree will allow the court to change the visitation schedule to something more appropriate. If you do not ask the court to modify the order and you begin denying visitation because it is difficult, you risk being found in contempt of court.

Some situations are less clear and more adversarial. Maybe you suspect your spouse has started to use drugs or is letting bad people around your children. A petition to modify can cite new drug use or reckless behavior as a change in circumstances and ask that custody be changed to you or that visitation be suspended or limited.

Unfortunately, a petition to modify can take time because the other party is entitled to notice and an opportunity to defend the petition. These modifications can become just as contested as a divorce. They require the same preparation and can be just as costly.

If the behavior is so bad that it poses an immediate threat to your children, you can file an emergency petition seeking immediate relief without an immediate hearing. If you suspect physical or sexual abuse, drug use, or there have been threats of parental kidnapping, a judge may sign an Ex Parte Order giving you full custody until a hearing can take place to prove your claims. Although the final determination might take some time, the Ex Parte Order allows you immediate relief if there is a risk of immediate harm.

If you have questions about Contempt, Modifying a prior order, or any Emergency situation, please contact an attorney to discuss your options.

50 | P a g e Copyright Owens, Mixon & Gramling, P.A. 2016 Conclusion

As you can see, there are many complicated issues that you may face when it comes to getting a divorce and other Family Law matters. Hopefully this Guide provided enough of a general explanation that you can begin to understand the conflict that you may have with your spouse.

If you are struggling with any family law issues and have questions, you should schedule an appointment with one of our attorneys. Initial consultations are free and we are dedicated to ensuring that your issues are resolved in your favor.

Disclaimer: The issues discussed in this guide are published as a general overview of common family law issues. They are not intended to take the place of legal advice. The publication of this guide does not create an Attorney-Client Relationship between the authors and the reader. We highly recommend that you go beyond the pages of this broad outline of family law issues and speak with an attorney to inform yourself of your legal rights.