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Poverty Law Practice Manual Family Law

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Poverty Law Practice Manual Family Law Poverty Law Practice Manual Family Law Contents Marriage . 3 Domestic Abuse . 6 Divorce . 9 Paternity . 17 Child Support . 19 Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and Parental Kidnapping Protection Act (PKPA) 22 A collaboration of Center for Arkansas Legal Services and Legal Aid of Arkansas, Inc. 1-800-9-LAW-AID (1-800-952-9243) | arlegalservices.org | arlegalaid.org Introduction Welcome to the Poverty Law Practice Manual. This manual is designed to help legal aid and pro bono attorneys better understand poverty law issues in Arkansas. The Center for Arkansas Legal Services and Legal Aid of Arkansas, Inc., maintain this manual. You can learn more about free legal aid in Arkansas by visiting arlegalservices.org. 2 Center for Arkansas Legal Services | (501) 376-3423 | arlegalservices.org Legal Aid of Arkansas | 1-800-952-9243 | arlegalaid.org ________________________________ I ________________________________ Marriage ____________________________________________________________________ Definition Arkansas law defines marriage as a civil contractual relationship between qualified people. A.C.A. § 9-11-101. In 2001, the legislature enacted the Covenant Marriage Act, which allows persons to choose to enter into a more restrictive form of marriage known as a covenant marriage. A.C.A. § 9-11-803. Under a covenant marriage, a party can only seek dissolution of the marriage when there has been a complete and total breach of the covenant commitment. A.C.A. § 9-11-803. A. Arkansas Requirements 1. Capacity Statutory requirements for marriage are found at A.C.A. §§ 9-11-101 to 221 and 9-11-701 to 706. Marriage is considered a civil contract to which the parties must be capable of consenting to and entering into the marriage contract. A.C.A. § 9-11- 101. Morris v. Morris a. Age 17-year-old males and 16-year-old females are capable of contracting marriage, A.C.A. § 9-11-102(a), but parties under 18 must have consent from their legal custodial parent(s). A.C.A. § 9-11-102(b)(1). The age requirement may be waived if the prospective wife is pregnant, A.C.A. § 9-11-103, but parental consent of each party is required. A.C.A. § 9-11-103(a)(2)(C). b. Mental Capacity Both parties must be mentally capable of entering into a contract. An intoxicated person or person of unsound mind is not legally capable of marriage. A.C.A. § 9-12-201; Vance v. Hinch, 222 Ark. 494, 261 S.W.2d. 412 (1953); Bickley v. Carter, 190 Ark. 501, 79 S.W.2d 436 (1935). c. Physical Capacity Both parties must be physically capable of entering into the marriage state. A.C.A. § 9-12-201. d. Prohibited Relationships Ancestors, descendants, siblings, aunts, uncles, and first cousins are prohibited from marrying. A.C.A. § 9-11- 106(a). e. Unmarried Persons Only unmarried people, including people whose marriages were ended by divorce or annulment, widows, or widowers, can contract marriage. A.C.A. § 9-12-101. A person becomes divorced and unmarried at the time the divorce is granted not at the time of entry of the decree of record. A.C.A. § 9-11-706. f. Same Sex Marriage Marriage shall only be between a man and a woman. A marriage between persons of the same sex is void. A.C.A. § 9-11-109. 2. Consent Both parties must consent to the marriage. A.C.A. § 9-11-101. The consent of a party may not be obtained through force or fraud. A.C.A. § 9-12-201. In Shatford v. Shatford, 214 Ark. 612, 217 S.W.2d 917 (1949), the Supreme Court affirmed the annulment of a marriage into which the husband entered based upon false representations by the wife that she was pregnant with his child. 3 Center for Arkansas Legal Services | (501) 376-3423 | arlegalservices.org Legal Aid of Arkansas | 1-800-952-9243 | arlegalaid.org 3. License and Ceremony The parties must apply at a county clerk's office for an Arkansas marriage license. A.C.A. §§ 9-11-201 and 202. Arkansas residence is not required to obtain a license, but all persons planning to marry in Arkansas must obtain their license in this state. A.C.A. § 9-11-202. At the time of application, the parties must pay a license fee ($60.00), sign a "notice of intention to wed," and enter into a bond with the state ($100). A.C.A. §§ 9-11-203, 204, 205 and 210. The license should be returned to the county clerk for recording within sixty (60) days from the date it is issued. A.C.A. § 9-11-218. The marriage is not void if license is not filed. A.C.A. § 9-11-205(g). All marriages must be solemnized by certain public officials, regularly ordained ministers, or in accordance with the traditional Quaker rite. A.C.A. § 9-11-213. B. Effect of Non-Compliance Introduction Failure to comply with technical requirements of marriage may not have a practical effect and probably will not affect the legitimacy of children born after the irregular marriage. A.C.A. §§ 9-11-205 and 28-9-209. The remedies for non-compliance fall into four categories. 1. Forfeiture of Bond If the marriage license is not duly executed and officially signed by some person authorized by law to solemnize marriage in this state, the bond required by § 9-11-210 shall remain in full force and effect, A.C.A. § 9-11-218. 2. Criminal Sanctions It is a misdemeanor: (a) to marry prohibited relatives and to knowingly perform such ceremonies, A.C.A. § 9-11-106; (b) to fail to comply with the notice-to-wed provisions, §§ 9-11-205 -206; (c) to improperly solemnize or report marriages; or (d) to fail to endorse and return the marriage license, §§ 9-11-216, -217, and -219. 3. Annulment Not all deficiencies in a marriage are grounds for annulment. A.C.A. § 9-12-201 states the grounds for granting an annulment are any of the following: • where one of the parties was incapable from "want of age or understanding" of consenting to the marriage including intoxication from drugs or alcohol • where one of the parties was "incapable from physical cause" • where one party's consent was obtained by force or by fraud These requirements are discussed in more detail, supra. However, please note that all these conditions must exist at the time of, or in connection with, the parties' entry into marriage. This is contrary to a common misconception that something occurs (or fails to occur) after the marriage ceremony. The law governing annulment is the law of the state where the marriage is performed and NOT the law where the annulment action is brought. An annulment action is an attack on the parties’ entry into marriage. Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S.W. 2d 1012 (1946). In annulment actions, circuit court has jurisdiction, and venue is in the county where the plaintiff resides. The plaintiff has the burden of proving the grounds for annulment. A.C.A. § 9-12-202 and Shatford, supra. A person who continues the marriage relationship after discovering grounds for annulment may be precluded from suing for annulment. Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952). 4. Void Marriage Subject to the Statute of Frauds (see below), a lease agreement may be oral or in writing. Any lease agreement involving direct or indirect federal rent subsidies should always be in writing, and in fact, most such agreements utilize HUd approved form 4 Center for Arkansas Legal Services | (501) 376-3423 | arlegalservices.org Legal Aid of Arkansas | 1-800-952-9243 | arlegalaid.org 5. Divorce Ordinarily, divorce is a remedy for events occurring after the marriage ceremony (only one of the grounds, physical impotence, must exist at the time of the marriage ceremony and at the time of the divorce). A.C.A. § 9-12-301. divorce is discussed in more detail in the divorce section. C. Marriages Contracted Outside Arkansas A.C.A. § 9-11-107 states that marriages contracted in accordance with local law in other states or foreign countries are valid in Arkansas. A number of states recognize common law marriages. These are generally arrangements where a couple lived together (in some states, there is a minimum time period for such cohabitation) and held themselves out as married, despite never having fulfilled formal requirements for marriage. Lester v. Celebrezze, 221 F. Supp. 607 (e.d. Ark. 1963). Arkansas does not recognize common law marriages which were "contracted" within Arkansas but does recognize those which met the requirements of the jurisdiction in which they were contracted. Stilley v. Stilley, 219 Ark. 813, 244 S.W.2d 958 (1952). However, residency in a state in which a common law marriage may be created is necessary for the recognition of the common law marriage. Brissett v. Sykes, 313 Ark. 515, 855 S.W. 2d 330 (1993). Mere visits or sojourns of parties to a common law marriage state are insufficient. Walker v. Yarbrough, 257 Ark 300, 516 S.W. 2d 390 (1974). exception: A.C.A. § 9-11-107 “shall not apply to a marriage between persons of the same sex.” 5 Center for Arkansas Legal Services | (501) 376-3423 | arlegalservices.org Legal Aid of Arkansas | 1-800-952-9243 | arlegalaid.org ________________________________ II ________________________________ Domestic Abuse ____________________________________________________________________ A. Dynamics of Domestic Abuse One in four women (25%) has experienced domestic violence in her lifetime (extent, Nature, and Consequences of Intimate Partner Violence, US dept. of Justice 2000).
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