Divorce FAQ

1.  How is a divorce initiated?

In Arkansas, a divorce is initiated when one spouse files a ‘Complaint’ in a circuit clerk’s office in the appropriate county.  Copies of the Complaint and a Summons to Court are given to the opposing party, called the defendant, generally by a process server.  Under some circumstances, these papers may be sent to the defendant by certified mail or even first class mail.

2.  What is an uncontested divorce?
An uncontested divorce is one in which there are no disputes over whether a divorce will be granted or over property issues, support, child custody or anything else.  Issues involving property and support, if resolved by the parties, may be set out in documents presented to the court at the time the divorce action is finalized.  The court will review the agreement and, if reasonable, it can be made part of the divorce decree.

3.  My spouse has just told me that he/she wants a divorce.  Can I oppose the divorce?
In Arkansas, you can.  After you and your spouse have lived in separate residences and have not had sex with each other for a continuous period of 18 months, a spouse who files for divorce and can prove that separation will be entitled to a divorce regardless whether the other spouse agrees.  If yours is a covenant marriage, your spouse will have to wait until you have been separated for two years to get a divorce, and if you have children, six months must have passed since the judge signed a judgment of judicial separation, unless she can prove certain misconduct by you.

4.  Does one of us have to move out of the house?  If I move out what happens?  Generally speaking, under Arkansas law, neither you nor your spouse has to move out of the marital residence.  Arkansas law does not absolutely require a separation unless a judge specifically orders it, but some judges may not know that spouses living together can legally divorce, and may require one of you to move before granting a divorce.

Having both parties staying in the home can be a source of friction, but one important reason to remain in the home is children.  Voluntarily moving out and leaving the children in the care of the other parent gives that parent a strong argument for custody.  The judge may reason that if you were a concerned parent, you would not have left the children with the other parent unless you felt that he or she could take adequate care of them.  Moving out without good reason is often the single largest blow to a custody case.  On the other hand, staying in the home can be the source of major problems, such as physical confrontations, ongoing fights and arguments, etc.  Staying also provides numerous opportunities for false allegations to be made.

5.  My spouse took the kids and moved out, and now she’s telling me that I can’t see them. Can she do this?
Your spouse can move out, but without a court order in effect, your spouse doesn’t have the right to control your access to your children.  With no court order in place, you can legally take the children whenever and wherever you want, for as long as you want.  You have as much right to spend time with them as your spouse does.

Usually, it is unwise to let your spouse interfere with your time with your children. Doing so ‘validates’ the notion that he or she actually has this control and tends to legitimize his or her efforts to keep you and your children apart. If there is no court order in effect, you are free to visit and/or pick the children up from school, take them to your home, feed them, care for them, etc, just as any parent would be.

If there is no court order or parenting plan in place and your soon-to-be-ex is already trying to interfere with the relationship between you and the children, we suggest contacting our office by calling 501-296-9999 immediately. Your attorney may suggest that you relocate your children and take them to your home until the matter is sorted out.

Be aware that behavior like this now bodes very badly for the future.  If your spouse is acting this way now, he or she may only become more difficult as time goes by, using your child as a tool and a weapon against you. Your children may be hurt by your spouse’s actions; but your spouse may not care. The fact is, your having custody may be your child’s only hope of having a normal, healthy life.

If your soon-to-be-ex will not support your relationship between you and your children, then it may be crucial for you to obtain legal custody. This may be the only way that both parents’ relationship with the children will be assured. Hopefully, you would be a more reasonable parent and would not interfere with the other parent’s relationship with the children. Since the same may not able to be said for your spouse, it may follow that you may need to be the one in control of the custody arrangements.

6.  The other party is asking for attorney fees. Will I have to pay?
Attorney fees may be granted.  If the other party has no income to speak of, or your incomes are deemed “disproportionate” (you make considerably more), the judge may act to “level the playing field” by making the more affluent party pay some or all of the less well-to-do party’s legal fees.

7.  My spouse had an affair. Can I use this against him/her?
Sometimes, in Arkansas.

8.  What happens in a “temporary hearing?” How temporary is it?
In a “temporary hearing,” the judge decides on matters of custody, child support, and spousal support, if any, to be in effect until the case either comes to trial, settles or is dismissed .

9.  I have been married for less than a year. Can I annul my marriage, or do I have to file for divorce?
Generally, you’ll need to file for divorce.  In some cases, you may be able to get the marriage annulled, but this will not invalidate child support obligations, if any.

10.  How is an annulment different from a divorce?
Similar to a divorce, an annulment is a court procedure that terminates a marriage.  The difference is that an annulment treats the marriage as though it never happened.  A divorce ends a valid marriage, deeming the marriage contract broken, whereas an annulment declares that the marriage never existed.  Annulment is rarer than divorce.  If you want to go this route, you will definitely need to speak to an attorney.  Of course, if you want an annulment for religious reasons, you may need to consult with a clergy person as well.  Contact our office at 501-296-9999 to learn the specific requirements and procedure.

11.  What are the grounds for an annulment?

In Arkansas, grounds for annulment are when a spouse is underage or mentally incompetent to consent to the marriage, or is incapable of entering into the marriage state due to physical causes, or where the consent of either spouse is obtained by force or fraud.

12.  Does a divorce or annulment need to be filed in the same state the marriage was in?
No. You may file for an annulment in Arkansas regardless of where your marriage took place.

13.  What happens if I can’t prove fault? Do I have to stay married?
The judge will generally not grant a divorce unless a) both parties agree on all issues; b) you can prove fault; or c) you have lived separate from your spouse and have not engaged in sexual activity with your spouse for more than eighteen (18) months.

14.  My divorce isn’t final yet, but my spouse has remarried. Isn’t this illegal? What can I do about it?
By entering into a marriage with one person while still legally married to you, he or she has committed bigamy. The real question is “What do you want to do about it?”

Obviously, you should contact your attorney and discuss this issue. It’s very possible that this event can be used to strengthen your case.   However, although bigamy is illegal in Arkansas, if the bigamous act occurred at the end of your divorce proceedings, it may be viewed as more of a technical violation than a deliberate, continuing act of fraud (what bigamy laws are generally intended to prevent).

15.  If I start dating someone before my divorce is final, can it be used against me?
In Arkansas, dating before divorce can occasionally be used against you, especially if you have children. Often, you’re best off postponing any dating until you’re formally divorced. This is as much out of concern for the children as anything else. Your children are almost undoubtably going to have a difficult time adjusting to the divorce (more difficult than you will), and it’s best to minimize the number of changes that they will be forced to deal with.  Dating can also give your spouse ammunition to contest or otherwise postpone your divorce.

16.  My ex has been in numerous short-term relationships recently. My child becomes very attached to them, but then they always break up, which is very hard on my child. Will the court help?
Sometimes such relationships can have a great bearing on which parent will be awarded custody of a child or on how much and what kind of visitation a non-custodial parent may have.

17.  We are getting divorced and he wants to relinquish his parental rights. How can we do this?
In Arkansas, your spouse probably will not be allowed to do this.  We strongly suggest contacting our office at 501-296-9999 to discuss handling this kind of thing.

18.  My spouse is in jail and won’t be getting out for at least two years. Can I file for the divorce myself?
Yes, you can initiate the divorce by yourself.  Sometimes information about appropriate forms and procedures can be found on the internet or in a law library of a college law school.

19.  I’ve been married for almost three years.  If I ask for a divorce and move out, do I have to pay the rent and bills for my spouse’s residence?  My spouse has never worked during our entire marriage.
You could very well be required to pay the rent and the bills (plus a whole lot more) whether you move out or not.

20.  When parents aren’t divorced yet, can one parent take child to another state to live permanently?
It may depend on whether a separation agreement or temporary order is in effect.  If so, there may be provisions that cover moving the child’s residence.  If not, it may be technically legal to do so, but sometimes judges do not look kindly on doing so.

21.  My ex and I have been in and out court for years. Is there a limit to the number of times she can drag me back into court?
There is no limit.  Marriage seems to be the only offense for which you may be tried continuously.

22.  I am in the process of divorce and am legally separated now. Can I get engaged (but not married) before the divorce is final or is that illegal?
In Arkansas, an engagement has no legal standing, so you can do so, but notice the cautions about dating in Question No. 15, above.

23.  My ex is not carrying health insurance on my child as ordered.  Is there anything I can do?
You can ask the court to impose sanctions and hold him or her in contempt.