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OMG Quick Divorce Guide By: Aaron D 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
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