ARKANSAS FAMILY LAW SUMMARY - Law Firm Law Office of Hawley Holman Attorneys Texarkana, Texas

A. MARRIAGE IN GENERAL creates the status of husband and wife. Once this legal status has been formed, the law imposes various obligations and liabilities upon the parties.

B. CONTROVERSIES ARISING IN ANTICIPATION OF MARRIAGE

1. Breach of Promise to Marry is still a permitted action in Arkansas. Recovery may be allowed for actual damages, expenditures made in preparation for marriage, loss to reputation, mental anguish, and injury to health, but not for loss of expected benefits, such as social and financial position. Punitive damages can be awarded if shown that the defendant acted maliciously.

2. Gifts in Contemplation of Marriage: Most jurisdictions hold that engagement gifts (e.g., a diamond engagement ring) are made in contemplation of marriage and are conditioned upon the subsequent marriage actually taking place. If the marriage does not occur, engagement gifts must be returned. With gifts other than the ring, factors such as the type of property given, fraud, conditions attached to the gift, and the intent of the donor with regard to the gift may be relevant in determining whether the gift will be viewed as given in anticipation of marriage.

C. LIMITATIONS ON WHO MAY MARRY

1. Age: A recent change in the law, as of July 31, 2007, was intended to establish 18 as the minimum age to marry, while also allowing pregnant minors to marry with parental consent. An extraneous "not" in the bill, however, allows anyone who is not pregnant to marry at any age if the parents allow it. It is uncertain as to whether the governor will call a special session to correct the law before the legislature's regularly scheduled session, not due to begin until 2009.

Prior to this change in the law, marital capacity was conferred upon males over the age of 17 and females over the age of 16. Males and females under 18 must have the written consent of both parents unless one is deceased, or unless the parents are divorced while the judge is given the authority to order a license in the case of an underage applicant to a proposed marriage if the female is pregnant.

2. Consanguinity: Marriages between persons who are "too closely" related (consanguinity) are prohibited, whether the relationship is by whole blood or half blood. Under Arkansas law, all marriages between parents and children, including grandparents and grandchildren of every degree; between brothers and sisters of the half as well as the whole blood; and between uncles and nieces, and between aunts and nephews, and between first cousins are declared to be incestuous and absolutely void.

3. Sex of Parties: Same-sex marriages are generally prohibited as per Arkansas statute. Moreover, the federal Defense of Marriage Act provides that states are not required to give full faith and credit to same-sex marriages legally entered in other states.

4. Mental Capacity

To give contractual consent to a valid marriage, each party must possess the ability to comprehend and voluntarily agree.

5. Physical Capacity

A person must possess the capability for sexual intercourse in order to be married.

6. Bigamy or Polygamy

To be validly married, a person must not already have a prior undissolved marriage to another living spouse.

D. PROCEDURAL REQUIREMENTS

License and solemnization required for a valid marriage.

1. License: obtain a marriage license prior to the solemnization.

a. Blood Tests: not required.

b. Waiting Period: no mandatory waiting period required between issuance of the license and performance of ceremony.

2. Solemnization by a ceremony performed by judicial officer or member of clergy. Arkansas law now allows any Justice of the Peace to solemnize a marriage in any county rather than just the county wherein his is an official. Moreover, it is no longer required that the Justice of the Peace have served at least three terms in order to solemnize a marriage; only two terms are now required under Amendment 55 to the Arkansas Constitution.

a. Completion and Filing of License must be completed by the one who solemnized the marriage and filed with the local government office as a public record of the marriage.

b. Proxy Marriages are ones where the solemnization ceremony is performed even though one party is unable to attend with the absent party authorizing in writing a third party to act as his proxy.

E. STATE OF MIND REQUIREMENTS

1. Capacity to Consent includes mental capacity to understand actions and agree to them; someone under the influence of alcohol or drugs may lack the mental capacity to enter into marriage. Capacity determined at the time the marriage ceremony took place.

2. Intent means that parties must, of their own free will, intend to enter into a marriage relationship. If one party uses fraud, duress, coercion, or force to induce the other party to enter the marriage, the validity of the marriage will be subject to attack.

3. Marriage for a Limited Purpose is a "sham marriage," which is a marriage entered into for a limited purpose (e.g., marriage for immigration purposes only). May be valid so long as the parties were competent and had satisfied all procedural requirements, but collateral agreements between the parties as to the nature of their relationship that are contrary to a marital relationship (e.g., an agreement not to be responsible for each other's support) would be invalid as a matter of public policy. Such marriages invalid, unless the parties intended to assume the usual obligations and status of marriage.

F. COVENANT MARRIAGE

Authorized in 2001 by the legislature, "covenant marriages" are available for couples who understand and agree that marriage is a lifelong relationship; who receive authorized counseling; who agree to make reasonable efforts to preserve the marriage if difficulties should arise; who may seek a divorce only if there has been a complete and total breach of the marital covenant; and who accept restrictive grounds for divorce.

G. COMMON LAW MARRIAGE

Basic requirements for the creation of a valid marriage at common law are:

(i) exchange of consents between two people;

(ii) cohabitation; and

(iii) holding out publicly of living together as husband and wife, which may include using a common last name, having a joint bank account, and telling people in the community they consider themselves married.

(No specific length of time required establishing a common law marriage.)

1. Common law marriages abolished in most states, including Arkansas; however, Arkansas will recognize such marriages from another state that are valid by laws of the other state if proponent can establish the existence of a valid common law marriage in the other state.

2. Compare-Putative Marriages; a doctrine that enables a court to provide equitable relief to a party who acted in good faith in entering a marriage subsequently declared invalid. A putative spouse may acquire rights of a legal spouse, including rights to alimony and property when the marriage is invalidated. However, it is generally held that rights of putative spouse may not supersede a legal spouse's rights, and the court must use equity in apportioning rights to alimony and property.

H. CONFLICTS PRINCIPLES

The general conflicts principles applicable to out-of-state marriages are the same for both common law marriages and marriages generally. The validity is judged by the law of the place in which the marriage was entered or attempted to be entered. The statute is limited to couples that actually resided in the foreign state or country where the marriage was decreed and consummated.

I. PREMARITAL CONTRACTS

Generally, premarital contracts between prospective spouses (also called antenuptial contracts), other than contracts to marry, are valid and usually pertain to property; contract principals apply. The purpose of premarital agreements is to provide for a distribution of assets upon divorce or death in a way that is different from what the law would ordinarily require.

1. Consideration: entry into the marriage is sufficient consideration to support an antenuptial contract.

2. Statute of Frauds: antenuptial contracts must be in writing and signed by the party to be charged, but partial performance of an oral contract, or detrimental reliance upon it, may remove the transaction from the statute.

Note: the Arkansas Premarital Agreement Act of 1987 requires a premarital agreement be in writing, signed and acknowledged by both parties.

3. Content of Contract

Under the Uniform Premarital Agreement Act ("UPAA"), essentially the same as the Arkansas statute, parties to the agreement may contract with respect to:

(i) The parties' rights and obligations in any of the property of either or both of them;

(ii.) The right to buy, sell, lease, assign, dispose of, or otherwise manage and control property;

(iii) Disposition of property upon separation, dissolution, death, or any other event;

(iv) Modification or elimination of spousal support;

(v) Making of a will or trust to carry out the provisions of the agreement;

(vi) Ownership rights in and disposition of the death benefit from a life insurance policy;

(vii) Choice of law governing construction of the agreement; and

(viii)Any other matter not in violation of public policy or a criminal statute.

Note: Right of a child to support may not be adversely affected by the agreement.

4. Amendment or Revocation: after marriage, a premarital agreement may be amended/revoked only by written agreement signed by the parties and is enforceable without consideration.

5. Enforcement by Courts: because the parties to an antenuptial contract do not deal at arm's length, but rather out of a relationship of mutual trust and confidence, courts strictly scrutinize the contract for good faith and lack of undue influence and will generally consider the following factors as to whether the agreement is valid:

a. Agreement must be entered into voluntarily, i.e., without fraud, duress, or overreaching.

b. Full and fair disclosure of the parties' financial worth generally required.

c. Fair and reasonableprovision for the claiming spouse is a factor for courts reviewing such agreements, taking into consideration the age of the parties and whether they have been married before may influence what the court deems to be fair and reasonable financial terms. When fair and reasonable provision has not been made for the spouse attacking the agreement, the agreement is presumed to be the product of overreaching; a presumption that may only be overcome by the other spouse showing that there was full and fair disclosure and an opportunity to consult with independent counsel.

1) Disproportionate Provisions: if provisions made for a spouse in the agreement are disproportionate to the means available, a presumption arises there has been designed concealment, and the burden is on the other spouse to show the spouse had, or ought to have had, knowledge of the character and extent of the assets.

d. Independent Counsel, although not required, if independent counsel represents both parties, the risk of a finding of overreaching in an agreement will be lessened.

e. Compare-Uniform Act Requirements indicate that a court will consider only two things: voluntariness and unconscionability. A premarital agreement is unenforceable if the party against whom enforcement is sought proves that she did not act voluntarily, or agreement was unconscionable when executed and before execution that party was not provided fair disclosure of the other party's finances, did not waive in writing such disclosure, and did not have adequate knowledge of the other party's property or financial obligations.

6. Property Rights vs. Alimony: courts are less likely to enforce provisions that would eliminate or severely limit alimony upon divorce, especially if the spouse would he left a pauper. Under the UPAA, if a premarital agreement would cause a party to the agreement to become eligible for support under public assistance at the time of separation or dissolution, a court may disregard the agreement and require time other party to provide support so as to avoid eligibility for public assistance.

7. When Marriage Is Void: if marriage is void, an agreement that would otherwise have been a premarital agreement is enforceable only to the extent necessary to avoid an inequitable result.

8. Statute of Limitation: an action asserting a claim for relief under a premarital agreement is tolled during the marriage, but equitable defenses limiting the time for enforcement, including laches and estoppel, are available.

J. POST-NUPTIAL AGREEMENTS

Close Scrutiny not Required: Arkansas appears to endorse postnuptial agreements without the requirement of close scrutiny to ensure it is fair and equitable, which is the requirement many states; in fact, some states do not even allow such agreements. Because there is no postnuptial agreement statute in Arkansas, such agreements should be analyzed under contract law, simply requiring the elements of a valid contract to be satisfied.

II. THE MARRIAGE RELATIONSHIP

A. RIGHTS AND RESPONSIBILITIES OF SPOUSES

1. Individual Rights

There is a trend to eliminate legal disabilities once imposed upon married women and their property. Since the passage of the Arkansas Married Woman's Act in 1915, wives have been permitted to own property independently, sign contracts, sue and be sued. Related concepts of privacy has also led to restrictions on one spouse's control over the other spouse's decision to undergo sterilization or abortion.

2. Property

Each spouse owns and controls her own property both before and during marriage, but principles of agency, real property, and tenancy by the entirety may apply.

a. Tenancy by the Entirety: in Arkansas, if the spouse takes title to real estate in their joint names, a tenancy by the entirety is presumptively created, which includes a right of survivorship and prohibits the conveyance or encumbrance of the property by one spouse; a presumption that may be overcome by express language to the contrary in the conveyance. Upon dissolution of the marriage, property held by the entirety becomes property held as tenants in common by operation of law.

b. Marital Property: courts have broad discretion in the equitable distribution of property acquired during marriage, no matter how title to property is held or by whom.

Note that the court of appeals recently held that the trial court's decision to reduce a wife's portion of marital property was correct because she had demonstrated a pattern of appropriating the couple's assets for her sole use. The appeals court noted that no corroboration was even need to supplement belief by the husband that the wife had appropriated assets for her own use and enjoyment given that the wife had established a pattern of appropriating the marital assets for her sole use and had even admitted to removing items from the safe deposit box and to emptying the parties' joint savings account. Moreover, the appeals court stated the wife's inability to remember where she deposited the funds diminished her credibility.

3. Support

Spouses are obligated to support one another; thus, a spouse who is not receiving support may petition the court for alimony and child support pursuant to a legal separation or pending divorce action. The extent of support is determined by the circumstances of the parties: the need of one spouse for the funds and the ability of the other spouse to pay.

a. Responsibility for Other Spouse's Obligations: principles of agency may require that one spouse be held liable to a third party for the other spouse's purchases if those purchases were expressly or impliedly authorized. The spouse with financial ability is liable to third-party merchants for goods or services they have provided to the marital partner, provided the goods can be described as a "necessary" (food, clothing, medical care).

4. Name Change: a woman is not required to adopt her husband's surname after marriage; she may retain her own name.

5. Suits Between Spouses: under the Married Woman's Act, spouses are now permitted to bring tort actions against each other, regardless of whether they are negligently or intentionally based.

6. Marital Rape: in Arkansas, the definition of rape provides no exception for spouses, but most other sexual offenses exclude activities between spouses.

7. Spousal Abuse and Protective Orders are available in all 50 states to allow battered spouses to seek some form of "stay away" or protection orders against violent spouses. If the Arkansas court has in personam jurisdiction over the defendant, the court is authorized to issue a temporary restraining order ("TRO") against the spouse to prevent the plaintiff from being subjected to physical violence or the threat of violence. The court may order the spouse to cease the conduct, and to refrain from entering the premises of the plaintiff, and may grant any other appropriate remedy. Arkansas law now gives the issuing court discretion to extend the maximum period of an order of protection from no less than 90 days up to ten years as opposed to the previous maximum limit of two years. Arkansas law also now requires the disclosure of the existence of any pending litigation between parties and the disclosure of any prior filings of a petition for an order of protection by the moving party to be included in petitions for orders of protection.

a. Domestic Abuse Act: the legislature in Arkansas has made several attempts to provide similar protection to spouses who may not desire a divorce and to individuals who not married to companions. Under the Domestic Abuse Act of 1991, the circuit court may issue an order of protection, even if a divorce is not sought. To expedite matters, court clerks are to provide simplified forms and clerical assistance. Violation of an order of protection is a criminal offense, within the power of the circuit court. A police officer may arrest without a warrant when there is probable cause to believe a domestic abuse crime had been committed within four hours of the time of the arrest.

In a recent opinion, the appeals court in Arkansas held that threatening text messages from her boyfriend, wherein he made physical threats of harm against his girlfriend and threatened to kill her dog qualified as domestic abuse, despite the fact that the girlfriend waited a few months before filing for the order of protection, noting that the term "imminent", as included in the state statute, meant at the time of the alleged abuse, not at the time of the filing of the petition.

B. FAMILY PRIVACY

1. Common Law Doctrine: generally, the internal affairs of a family cannot be regulated by the courts as families have the right to expect privacy for actions within their homes and freedom from government interference in domestic affairs.

2. Constitutional Privacy: though not specifically mentioned in the Constitution, the Supreme Court has recognized the right of personal privacy is constitutionally protected because it is implicit in the concept of "liberty" within the protection of the Due Process Clause. Privacy is considered a fundamental right; therefore, any regulation of it (other than in the abortion area) is invalid unless it is found to be necessary to a compelling government interest.

a. Marriage

The right to marry is a fundamental right; thus, a law prohibiting a class of adults from marrying will likely be found invalid unless the government can demonstrate the law is narrowly tailored to promote a compelling, overriding, or at least important interest.

b. Reproductive Choices

1) Procreation: this is a fundamental right protected by the Constitution.

2) Contraception: because of the constitutional right of privacy, the state can neither make the use of contraceptives by adults a crime nor prohibit the distribution of contraceptives to single or married adults Moreover, a state cannot prohibit distribution of nonmedical contraceptives to adults except through licensed pharmacists, nor prohibit sales of these contraceptives to persons under age 16 who do not have approval of a licensed physician.

3) Abortion: as held by the Supreme Court in the case Roe v. Wade, the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the state. The Court has also found that the state has a compelling interest in protecting the health of both the woman and the fetus. These compelling interests may conflict with each other and with the woman's privacy right. The latest plurality opinion adopted a pre-viability rule and a post-viability rule.

a) Pre-Viability Rule-No Undue Burden

Before the time when the fetus has a realistic chance of survival outside the womb, a state may adopt regulations protecting the health of the woman or the fetus only if the regulation does not impose an undue burden or substantial obstacle to the woman's right to an abortion. The mere fact that the regulation makes it more difficult or expensive to obtain an abortion is not of itself an undue burden or substantial obstacle. The following regulations are not considered undue burdens:

(i) A statute requiring that abortions be performed by licensed physicians and requiring the physician to provide the woman with certain information regarding the abortion;

(ii) A statute requiring that abortions be performed in a medical facility equipped with all the medical equipment found in a hospital surgery room;

(iii) A statute requiring a 24-hour waiting period; and

(iv) A statute requiring a minor to obtain her parent's consent or requiring the doctor to notify one or both of a minor's parents, provided the statute contains a bypass procedure whereby the minor may obtain the abortion without parental consent or notification with the consent of a judge.

(1) Spousal Notification Is Undue Burden

It is an undue burden to require a woman to sign a statement that she has notified her spouse that she is about to undergo an abortion.

(2) Ban on "Partial Birth" Abortions Is Undue Burden

A state may not completely ban all "partial birth" abortions because such a ban would not make any exception for the woman's health and would impose an undue burden on a woman's right to choose the most common method for pre-viability, second-trimester abortions.

b) Post-Viability Rule-May Be Prohibited Except to Protect Woman's Health

Once the fetus is viable, the state's interest in the fetus may override the woman's right to abortion, but it does not override the state's interest in the woman's health. Therefore, unless an abortion is necessary to protect the health of the woman, the state can prevent the abortion of a viable fetus. Viability is a medical question left to the attending physician's judgment, but the state may require certain tests to determine viability.

c) The "Woman's Right to Know Act of 2001"

The "Woman's Right to Know Act of 2001" requires that the woman be given information about medical risks connected with an abortion, the probable gestational age of the fetus, and the availability of medical assistance benefits.

c. Familial Rights

The right of privacy includes the right of related persons to live together. Thus, a zoning ordinance prohibiting persons beyond a certain degree of relation (extended families) from living in a single household has been found unconstitutional because there is no compelling state interest to justify such a rule.

d. Right to Educate Children

The right of privacy includes the right of parents to educate their children outside the public schools, subject to the state's right to prescribe reasonable educational standards.

e. Rights in the Care, Custody, and Control of Children

The right to privacy includes the rights of parents to decide issues concerning the care, custody, and control of their children. For example, parents' decisions regarding whether third parties (e.g., grandparents) may have visitation with their children have constitutional protection.

3. Husband-Wife Evidentiary Privilege

There are two separate husband-wife privileges: spousal immunity (the privilege not to testify against a spouse in a criminal case) and the privilege for confidential marital communications. Neither of these privileges applies in actions between the spouses or in cases involving crimes against the testifying spouse or the children.

a. Communications Between Spouses

Arkansas evidence rules provide that a communication is confidential if it is made privately by any person to his spouse and is not intended for disclosure to any other person. The accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication. This privilege does not apply to:

(i) civil proceedings;

(ii) statements that were intended to be disclosed;

(iii) reports made in nonjudicial proceedings; and

(iv) crimes against family members or their property.

b. Compare-No Parent-Child Privilege

III. TERMINATION OF MARRIAGE

A. ANNULMENT

An annulment is a declaration that a marriage is invalid; i.e., that due to an impediment at the time of the marriage, no marriage ever occurred. Thus, once a decree of annulment has been entered, the parties generally are treated as if they had never been married. Two types of marriage are subject to annulment: void marriages and voidable marriages.

1. Void/Voidable Distinction

a. Void Marriage: one that never existed for any purpose; a complete nullity. If a marriage is void, no subsequent act can ratify the marriage. Generally, parties may walk away from void marriages without court order; the reason for bringing an annulment action is usually to have the court determine property distribution and child custody. Any interested party may seek annulment of a void marriage, and the marriage is subject to collateral attack (i.e., in actions other than for annulment, such as probate actions) even after the death of one of the parties.

1) May Become Merely Voidable if the impediment is later removed. For example, if a wife had a previous spouse from whom she erroneously believed she was divorced, her marriage to her second husband would be void. If her first husband later died, however, her second marriage would then be voidable rather than void. In fact, if the marriage is ratified afterward by continuing the relationship, it may become valid.

b. Voidable Marriage: if voidable, one of the spouses may bring an action to have the marriage declared invalid because of an impediment existing at the time of the marriage. This type of marriage cannot be attacked collaterally or by third parties. A voidable marriage is deemed valid unless one spouse seeks to have it annulled. If the spouse with the cause of action ratifies the marriage by continuing the relationship, or if one spouse dies, the marriage can no longer be invalidated.

2. Grounds for Annulment:

a. Bigamy or Polygamy: in all states, if either party to the marriage has another living spouse (not former spouse), the marriage is void.

b. Consanguinity: marriages where the parties are too closely related are prohibited. Arkansas and the majority of states consider these marriages void rather than voidable.

c. Nonage: a spouse under the statutory age at the time of the marriage who married in violation of the statute (i.e., without getting required parental and/or judicial consent) can demand a judgment of annulment on the ground of nonage. However, upon reaching the specified age, may ratify the marriage by continuing in the relationship. These marriages are considered voidable.

d. Lack of Physical Capacity to Enter into Marriage: incurable physical impotence (the inability to have normal sexual relations with a spouse) is a ground for annulment. Applies to wives as well as husbands, and that the inability to have children is not impotence. These marriages are considered voidable. Thus, if the plaintiff knew or should have known of the impotence before marriage, the annulment will be denied. Likewise, if the plaintiff continued to cohabit with the impotent spouse long after learning of the condition, it could be deemed ratification or laches barring annulment.

e. Lack of Understanding Necessary to Consent: may be sufficient to annul a marriage if there was as follows:

(i) a lack of understanding due to a mental condition or the influence of drugs or alcohol;

(ii) a lack of mutual assent to the marriage;

(iii) duress; or

(iv) fraud going to the essentials of marriage.

These types of marriages are generally voidable.

1) Mental Incompetence: a marriage may be annulled because a party was incapable of consenting to a marriage for lack of understanding due to mental infirmity or because of alcohol or drugs.

2) Force: if either party entered the marriage as a result of force, the marriage is voidable and subject to an annulment action by the aggrieved party.

3) Fraud: a ground for annulment when the misrepresentation goes to the essentials of marriage. Misrepresentation as to ability or willingness to engage in sexual relations or bear children is considered to go to the essentials of marriage. Examples of when some courts have also found fraud sufficient to invalidate a marriage include cases where:

a) The wife failed to disclose a pregnancy by someone other than the husband, but not where the wife merely misrepresented that she was pregnant;

b) A party concealed the existence of a venereal disease or drug addiction, but not where the party concealed a prior mental illness;

c) A party never intended to fulfill any of the duties of marriage (e.g., married for ulterior motives, such as to avoid deportation); and

d) A party misrepresented his religion or intent to participate in a religious ceremony.

3. Defenses

a. Void Marriages-No Impediment: such marriages are of no legal effect. The only way to defend an action to annul a void marriage is to deny the existence of the defect that allegedly caused the marriage to be void, if the impediment has been removed, the marriage becomes voidable.

b. Voidable Marriage-Equitable Defenses: in addition to denying the existence of the defect that allegedly caused the marriage to be voidable and the defense of ratification, courts recognize other equitable defenses, such as laches, estoppel, and unclean hands, as defenses to suits to annul voidable marriages although laches and estoppel will often be subsumed in the defense of ratification, and unclean hands (recrimination) is no longer applied by a majority of courts.

4. Children of Annulled Marriage

Most states recognize children of an annulled marriage as marital children, even if the marriage was void. Child support and custody in these cases are handled the same as in a divorce action.

5. Alimony

Many states have enacted statutes that allow courts to award permanent alimony in annulment suits the same as in divorce cases. In the absence of such a statute, alimony is not awarded in annulment suits. This is because alimony is a substitute for support owed to a spouse. If the annulment declares there was no marriage, it is inconsistent to award support due only to a spouse. Even in states without a statute, however, courts generally award temporary alimony during the pendency of the suit.

6. Division of Property

In most cases, courts attempt to place the parties in their pre-"marriage" position. Usually courts try to divide the property by giving to each party that property to which he has legal or equitable title, although some courts use standards of property division closer to those used in divorce cases.

7. Jurisdiction

Most states have specific statutes conferring jurisdiction in annulment actions on specific courts, but in states without statutes, annulment actions are heard by equity courts.

a. Jurisdiction Among States: the state of domicile of either of the parties has jurisdiction to hear the annulment action. Many states also provide that the state where the marriage was celebrated also has jurisdiction.

b. Recognition of Decree: annulment decrees rendered with proper jurisdiction are entitled to recognition by other states under the Full Faith and Credit Clause of the United States Constitution. Likewise, a decree rendered without appropriate jurisdiction would not be entitled to full faith and credit.

B. DIVORCE AND SEPARATION

1. Divorce: a decree of absolute divorce terminates the marriage relationship. There is no such thing as a common law divorce.

a. Three Divorce Actions in Arkansas

1) Separate Maintenance

The separate maintenance action is not statutory, but instead arises under the broad power of equity. This action attempts to regularize the relationship of spouses who cannot live together, but do not have grounds for divorce or do not wish for a divorce. The party must establish only separation and perhaps an absence of fault, not any grounds for divorce.

The court can award temporary support and temporary custody or use of property and make other arrangements regarding debts, assets, insurance, and benefits. However, the court cannot absolutely and finally divide property or change ownership. Typically, the parties seek separate maintenance. If the court finds no grounds to award a divorce, it may award support.

2) A Mensa Et Thoro

Courts have the power to grant a limited divorce or a divorce from bed and board ("a mensa et thoro"), as well as the power to grant an absolute divorce ("a vinculo matrorninii"). The grounds for the limited divorce are the same as for the absolute divorce. The limited divorce is a separation of the parties, which attempts to regularize their financial, property, and custodial relations, while declining to divorce them, thus disallowing remarriage. The court may grant such a divorce if he finds a possibility of reconciliation.

3) A Vinculo Matromninii

This divorce from the bonds of matrimony is the complete, absolute traditional divorce.

b. "No-Fault" Divorce

1) Eighteen Months Separation: considered a "no-fault" ground for divorce. Either party may sue, and fault is irrelevant. The divorce is granted regardless of:

(i) whether the separation was the voluntary act of one party or by the mutual consent of both parties;

(ii) whether the separation was due to the fault of either or both parties;

(iii) which party left the marital abode; and

(iv) whether the separation was intentional or caused by other factors (such as job relocation).

The only requirement is 18 months' separation without sexual relations.

2) Incurable Insanity with a Three-Year Separation: this statutory provision has meticulous provisions for continued maintenance of the insane spouse. Here again, fault should not be a consideration.

c. Grounds

1) Impotence requires that either party was impotent at the time of the marriage contract and still is impotent.

2) Felony or Other Infamous Crime where either party is convicted of a felony.

3) Habitual Drunkenness for One Year, Cruelty and Indignities

a) Habitual Drunkenness for One Year

The Arkansas Supreme Court has examined the concept of habitual drunkenness but produced no exact definition. The court has found that one need not be constantly drunk, drunk more often than sober, or incapacitated from conducting business to be considered habitually drunk. The court has made reference to the inability to resist temptation as a factor to consider.

b) Cruelty

Because of the breadth of the ground of divorce known as "indignities," the ground called "cruelty" is seldom used. The statute actually uses the language "such cruel and barbarous treatment as to endanger the life of the other." Its traditional definition, thus, requires something more than a mental injury. A party must demonstrate that cruelty has been so great as to cause physical illness or injury.

c) General Indignities

Such indignities to the person of the other as shall render that spouse's condition intolerable constitute one ground for divorce. The Supreme Court of Arkansas has defined indignities as "unmerited reproach, rudeness, contempt, steady neglect, and open insult, habitually and systematically pursued to the extent of rendering married life intolerable."

For a divorce to be based on indignities, the conduct must "manifest settled hate, alienation and estrangement, and be constantly and systematically pursued with the purpose and effect of causing an enduring alienation and estrangement and rendering the condition of the spouse intolerable." Mere lack of congeniality and resulting quarrels are not sufficient to show general indignities.

Indignities must persist over a length of time so as to indicate a condition of settled hatred or enduring estrangement. For example, 67 days of indignities was held to be insufficient and the court has found that indignities cannot develop in a marriage of just six months.

4) Adultery

Adultery is sexual intercourse by a married person with a person other than his spouse. The difficulty with this ground is lack of proof in the event the party who allegedly engaged in intercourse with the spouse is unavailable or unwilling to testify. The traditional proof required is an opportunity to engage in sexual intercourse and the inclination to do so.

5) Willful Failure to Support

Under this gender-neutral statute, the court must determine what constitutes support and what level must be achieved to satisfy the statutory requirement.

d. Defenses to Fault Grounds

With the advent of no-fault grounds, these defenses, like the grounds on which they are based, are rarely invoked. Many states have abolished these defenses altogether, but most remain on the books (though rarely used) in most states.

1) Collusion is an agreement to simulate grounds for divorce, or an agreement not to bring up an existing or potentially existing defense. Collusion between the parties to a divorce proceeding may preclude the granting of a decree of divorce, even if adequate cause for a divorce exists.

2) Connivance is the willing consent by one spouse to the other spouse's misconduct. This defense is usually limited to adultery cases. Connivance has been abolished as a defense in many states, and in those where it remains, it is almost never used.

3) Condonation asserts that while marital offenses may have occurred in the past, they were forgiven with full knowledge that they had been committed. Resumption of marital relations after the forgiveness is the key element of this defense. Condonation, where the doctrine still exists, is not only a good defense to a fault ground for divorce but also cuts off the defense of recrimination.

4) Recrimination is a form of the doctrine of unclean hands) is a defense that arises when the party seeking the divorce is also guilty of misconduct for which a divorce may be granted. That offense may be pleaded to bar a suit for divorce, irrespective of the ground on which the suit was brought. To put it simply, if both parties have grounds for divorce, neither can get one! This doctrine is nearly extinct. Many states have expressly abolished it, and in the few places where it remains technically viable, courts use various techniques to avoid its impact. The Arkansas Supreme Court has applied this defense inconsistently, and on occasion the court has used the doctrine of comparative rectitude, in which the fault of each party is examined and the divorce is granted to the party least at fault.

5) Provocation is an affirmative defense in which the defendant admits his fault, but affirmatively argues that his actions were provoked or caused by the actions of the plaintiff, and thus the plaintiff should be barred from divorce.

2. The Divorce Suit

a. No Default Judgment: proof required for a divorce action is treated differently than other actions. There is no "default judgment" in the sense that the plaintiff wins without proof.

b. Proof of Residence Required: plaintiff must always offer proof of residence, and that proof must be corroborated via oral testimony or verified affidavits of nonparties.

c. Corroboration Required for Divorce Based on Eighteen Months' Separation

d. Uncontested Divorce-No Corroboration: testimony of plaintiff alone is sufficient. But the testimony of the plaintiff must be sufficient to establish grounds for divorce. For example, a spouse's testimony that couple had "problems during marriage" and could no longer live together insufficient to support divorce.

e. Defendant's Answer: If defendant files an answer denying grounds for divorce, plaintiff must offer corroboration, even if defendant does not appear at the hearing. The court may consider testimony (in the form of stipulations or depositions) given by parties who were not present in court. In the absence of an express written waiver of corroboration, a divorce granted in a contested case without corroboration of the grounds will be set aside on appeal.

f. How Much Corroboration Is Required?

Although some cases state that in a contested divorce action, relatively slight corroboration is required to establish the grounds for divorce, other decisions emphasize that generalities, opinions, beliefs, and conclusions are not enough. The witness's testimony must be directed toward specific language, acts, and conduct. Testimony such as "he was never kind to her" and "there was tenseness in the house" is not sufficient.

Such a determination must be based on facts testified to by witnesses, and not on the beliefs or conclusions of the witnesses. It is essential, therefore, that proof should be made of specific acts and language showing the alleged rudeness, contempt, and indignities. General statements of a witness that the defendant was rude or contemptuous toward the plaintiff are not sufficient. The witness must state facts-that is, specific acts and conduct from which he arrives at his conclusion. The court must be able to determine whether those acts and such conduct are of such a nature as to justify the conclusion or belief reached by the witness.

g. Final when Judgment Is Entered

Under Arkansas law, a divorce decree is final when a formal judgment is entered, regardless of when an announcement of divorce is made from the bench.

3. Jurisdiction and Recognition of Decrees

a. In Rem Action: divorce actions are regarded as in rem actions because they deal with the dissolution of a status that may be regarded as the res. The presence of that res in a state gives the state's courts subject matter jurisdiction. For a century, divorce actions and other family law actions were heard in chancery court in Arkansas. However, with the merger of law and equity in 2001, these actions are now filed in circuit court and assigned to the domestic relations division.

b. Proof of Residency and Cause of Action: party seeking divorce must prove the following:

(i) Residence in Arkansas of either the plaintiff or defendant for 60 days prior to commencement of the action and residence in the state for three (3) months before the final judgment granting the decree of divorce;

(ii) That the cause for divorce existed within five years before the complaint was filed; and

(iii) That the cause of action for divorce existed or occurred in Arkansas, or, if it occurred outside, the acts constitute grounds under Arkansas law.

(Note that at least 30 days must elapse between the filing of the complaint and the granting of a divorce decree.)

c. Divisible Divorce: no requirement of personal service on the defendant. That statement, however, applies only with respect to the power of the court to dissolve the marital status. If the court awards alimony or divides property not subject to its jurisdiction, then in personam jurisdiction must be established. This concept is known as divisible divorce.

d. Long Arm Jurisdiction statute provides the basis for in personam jurisdiction over an absent spouse if his actions while in Arkansas constitute grounds for divorce. The Arkansas court has the power not only to dissolve the marriage but also to grant alimony, attorneys' fees, and child support to the plaintiff.

e. Action for Support: if a spouse obtains a valid divorce in another jurisdiction, but could not seek support there because of a lack of in personam jurisdiction, the spouse may commence an independent action against the Arkansas spouse for support. Such an approach is consistent with the doctrine of divisible divorce.

f. Recognition of Decrees-Full Faith and Credit: a divorce decree obtained in one state is recognized as valid in other states as long as one of the parties was domiciled in the state that granted the decree. For other provisions of divorce decrees regarding alimony, attorneys' fees, child support, and property rights to be given full faith and credit, the court must have had personal jurisdiction over the defendant.

g. Comity: full faith and credit does not apply to judgments from foreign countries, but their judgments may be honored on principles of comity and reciprocity. Courts are most likely to recognize foreign decrees when one party was domiciled in the country rendering the judgment.

4. Division of Property

Three main approaches used by the states to divide property upon divorce:

(i) community property (under which all property acquired during marriage is deemed owned one-half by each spouse, and all property brought into the marriage or acquired by gift or bequest is deemed separate property);

(ii) equitable division of all of the property owned by either spouse, whether acquired before or after the marriage; and

(iii) equitable division of marital property (which means that each spouse takes his separate property and the court divides the property acquired during marriage on an equitable basis-not necessarily one-half to each).

The most popular approach is the third, and that is what will be addressed below. Arkansas follows this approach, and the courts are generally authorized to effectuate an equitable distribution of all property, real or personal, including pensions, acquired by either spouse during the marriage. This property division scheme recognizes the partnership theory of marriage. Arkansas case law provides that the property is to be valued, and thereby divided, as of the date of the divorce. Property distribution decrees are not modifiable. These awards can be reopened on grounds sufficient to reopen any judgment such as fraud.

a. Separate Property: generally, each spouse can take out of the marriage any property that she owned prior to the marriage, any appreciation it has earned, plus any additional property acquired during the marriage through gift or by reason of the death of another (e.g., life insurance proceeds; payments made under a deferred compensation plan or an individual retirement account; property acquired by right of survivorship, by a trust distribution, by bequest or inheritance, or by a payable on death or a transfer on death arrangement).

b. Marital Property: the courts have authority to order an "equitable distribution" of all marital property (no matter how title is held). Marital property is defined as all property acquired by either spouse subsequent to the marriage except:

(i) Property acquired by gift or by reason of the death of another;

(ii) Property acquired in exchange for separate property;

(iii) Property acquired by a spouse after a decree of divorce from bed and board;

(iv) Property excluded by valid agreement of the parties;

(v) The increase in value of separate property;

(vi) Benefits received or to be received from a workers' compensation claim, Social Security claim, or personal injury claim when those benefits are for permanent disability or future medical expenses; and

(vii) Income from separate property.

Note: Marital property may include property acquired after separation, but before divorce.

1) Factors Considered: Note that marital fault is generally not a factor in division of property. When a divorce decree is entered, all marital property shall be distributed one-half to each party unless the court finds such a division to be inequitable. In that event, the court shall make some other division that the court deems equitable, taking into consideration:

a) The length of the marriage;

b) The age, health, and station in life of the parties;

c) The occupation of the parties;

d) The amount and sources of income of the parties;

e) The vocational skills of the parties;

f) The employability of the parties;

g) The estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;

h) The contribution of each party to the acquisition, preservation, or appreciation of marital property, including services as a homemaker; and

i) The federal income tax consequences of the court's division of property.

2) Court Must State Reasoning

The court must state its reasoning and basis for not dividing marital property equally between the parties. For example, in dividing marital property, the court may elect to give one party more than one-half because a portion of the separate property might not be susceptible to a division in kind or a forced sale such as with a share of a medical practice. Likewise, the court may consider the overall financial status of the parties.

3) Broad Distribution Power

The judge has broad power to distribute the property to achieve an equitable division and may order credits, set-offs, and apportion marital debts

a) Remedies Available to the Court

The trial court may use discovery techniques to locate marital property after the divorce and may use contempt powers to enforce a decree.

b) Estates By the Entirety

Upon the final divorce decree, any estate by the entirety or survivorship is automatically dissolved and the parties are treated as tenants in common, unless the court order specifically decrees otherwise. Therefore, in making the distribution, the court may partition the property, deed the property to one spouse, give one party possession of the family home while the children remain in school, set a deadline for the sale of the house, require the parties to make mortgage or insurance payments, or order similar acts.

4) Possible Division of Nonmarital Property

All other property that does not fit the description of marital property shall be returned to the party who owned it prior to the marriage unless the court finds equitable reasons for dividing it differently in accordance with the criteria mentioned above. Thus, although there is a presumption that nonmarital property owned prior to the marriage will be returned to the spouse who owned it originally, occasionally nonmarital property may be divided. For example, the non-owning spouse may be entitled to an equitable adjustment if marital funds were used to pay off debts or improve the owning spouse's property. However, nonmarital property acquired during the marriage cannot be divided.

5) Tracing

As long as nonmarital property can be traced, it will retain its separate identity; burden is on the party who asserts that the property is nonmarital to trace its identity.

6) Transfers of Property in Confidential Relationship

When a confidential relationship exists between spouses, and one spouse has the superior position of dominance or advantage, the other spouse may offer evidence to invoke the presumption that a transfer of property to the dominant spouse be treated as invalid due to coercion and undue influence. The dominant spouse then has the burden of rebutting the presumption by showing that the transfer was freely made.

c. Issues in Marital Property

1) Pensions

Pensions that have vested are considered marital property subject to equitable distribution; thus, the portion of a pension earned by one party during the years that the marriage existed must be divided by the court in an equitable fashion. A vested pension may be partially marital and partially nonmarital. Ordinarily the spouse is entitled to only a one-half interest in any retirement benefits acquired by the other spouse during marriage.

a) Military Retirement Benefits

Vested military retirement pay is marital property. In contrast, nonvested military retirement benefits are not marital property.

b) Federal Benefits

While federal retirement benefits are marital property and divisible, Social Security benefits are not.

c) Methods of Valuation May Differ

The courts recognize different ways of valuing a pension plan for purposes of division. For example, in a defined contribution pension plan (i.e., a retirement savings plan such as a 40 1(k) or the state teacher retirement system), its value may be based upon the total contribution made rather than the present value of the benefits.

d) Qualified Domestic Relations Orders

Chancery courts are authorized to issue a qualified domestic relations order ("QDRO"), which directs managers of retirement plans to allot the annuities and benefits to particular individuals.

2) Professional License or Degree Generally Not Distributable

A clear majority of jurisdictions that have ruled on the matter hold that just as a spouse's earning capacity is not distributable property, neither is a professional license or educational degree on which the increased earning capacity is based. The rationale for such decisions is that a license or degree has none of the usual attributes of property (e.g., it cannot be purchased, transferred, or inherited); thus, it may not be classified or distributed as marital property, even when the attainment of the license or degree was made possible through the support of the other spouse. To avoid unfair results, some jurisdictions have compensated supporting spouses for their contribution during the other spouse's training or education (e.g., on a theory of unjust enrichment, by amending statutes to make the supporting spouse's contribution a factor on which alimony may be based, or by awarding "reimbursement alimony".

a) Three-Part Test to Determine Character of License or Degree

Arkansas has adopted a three-part test to determine whether a professional degree or license can be characterized as marital property. The court must examine whether:

(i) there is significant accumulated marital property;

(ii) the other spouse is ineligible for support; and

(iii) the other spouse already benefited financially from the increased earning capacity.

This can be contrasted with the situation where the divorce takes place immediately after the acquisition of the professional degree or license and the potential for higher earnings. In that instance the spouse has not received the "benefits" of the marriage and a different division may be appropriate.

b) Valuation

When courts distribute a license or degree as marital property, its value must be determined so that the court can award a percentage of its value to the other spouse. Once value is determined, courts may distribute the proper amount to the other spouse by awarding that spouse more marital property or alimony based on the court's valuation of the license or degree. In cases where there is little property to be divided and alimony is not granted, the nondegreed spouse may be awarded his equitable share of the degree in a lump sum or in a series of payments.

3) Damage Awards in Tort Suits

Many states hold that if a cause of action for personal injury accrues between the date of marriage and the final separation, the proceeds from the settlement or award are marital assets subject to equitable distribution no matter when they are paid. An unliquidated personal injury claim of a spouse against a third party is marital property, even though it accrues after separation and even though a complaint has not been filed at the time of the divorce. This unliquidated property interest might be divided by having the court reserve jurisdiction until the claim is pressed or extinguished, or having the court assign each party a fixed percentage of future benefits. However, an Arkansas statute provides that part of the value of the claim might remain nonmarital property.

4) Distribution of Stock

Stock in a closed corporation may present difficult issues. If the stock is clearly nonmarital (acquired prior to marriage), the increase in the value is also nonmarital. However, the court may still recognize that the increase in value of non-marital property was due in part to the contributions of the other spouse, and use the overall distribution to reflect the contributions. Stock options constitute marital property if acquired during the marriage.

5) Partnership Interests

A partnership interest may be marital property; the value of such an interest is normally to be divided equally. The divorce of a partner in a law firm raises interesting questions of the value of his interest. Contingency fee contracts are marital property to be divided, with the court retaining jurisdiction until the fees are received.

6) Good Will of a Business

The good will of a business is a business asset with a determinable value and is marital property, subject to division. However, the good will must have a value independent of the presence or reputation of a particular individual-an asset that may be sold, transferred, conveyed, or pledged. The other spouse must offer evidence establishing the marketability of that good will as a business asset.

d. Mixed Property

1) Commingled Property

Separate property may become marital property if it is inextricably mingled with marital property or with the separate property of the other spouse. or mingling does not occur if the separate property can be traced into the new product. Property acquired in part out of marital funds and in part out of one spouse's separate funds may be part marital property and part separate property.

2) Transmutation of Separate Property

Arkansas follows the rule that if property is placed in the names of both the husband and the wife, the property is presumed to be held by them as tenants by the entirety. For example, when separate funds are deposited in a joint bank account, there is a strong presumption that the owner of the separate funds has made a gift of an interest in the funds to the other spouse. This presumption may be overcome by clear and convincing evidence. Merely placing the separate property temporarily in a joint checking account to make a record and then transferring it back to separate property may not destroy its nonmarital status.

3) Improvement of Separate Property

When separate property is improved by the use of marital funds or the effort of the other spouse, courts generally hold that the property remains separate property, but most jurisdictions grant the marital estate or the nonowning spouse reimbursement for the value added to the separate property.

4) Property Acquired Before Marriage but Paid for After Marriage

Courts are split as to how to classify property that was acquired by a spouse prior to marriage, but was paid for in whole or in part after marriage from marital funds. The most widely accepted position seems to be that the property should be apportioned between separate and marital interests in proportion to the contribution of separate and marital funds used to pay for the property.

5) Property Acquired During Marriage but Paid After Divorce

Marital property includes salary bonuses, required by an employment contract and accrued during the marriage, even if not paid until after the divorce. However, marital property does not include a contractual right to compensation for future services because that amount has not been earned during the marriage.

5. Maintenance and Alimony

Maintenance is the right to spousal support while the parties are still married. Many courts require proof that the parties are living separate and apart before maintenance can be ordered. In other states, maintenance can be ordered at any time, even while the parties are still living together. When a divorce decree is entered in Arkansas, the court may "make such order touching the alimony of the wife or the husband and care of the child or children, if there be any, as are reasonable from the circumstances of the parties and the nature of the case."

a. Purpose

The purpose of maintenance and alimony is to ensure an adequate income stream for persons whose economic dependency has resulted, at least in part, from the marital relationship. Alimony is not a reward to the receiving spouse nor is it a punishment for the paying spouse; it is an attempt to rectify the economic imbalance in the earning power and standard of living of the spouses. The trend is to award alimony less frequently than in the past. Reasons for this trend are the increased numbers of couples where both spouses work (neither is economically dependent) and the increased availability of marital property to be distributed, regardless of how it is titled. Alimony can be awarded to either spouse.

b. Amount of Alimony

The court has wide discretion in awarding as much alimony as is necessary for the maintenance of the party requesting it. Factors considered by the court in determining the amount of alimony, if any, include:

(i) The financial circumstances of both parties;

(ii) The financial needs and obligations of both parties;

(iii) The couple's past standard of living;

(iv) The value of jointly owned property;

(v) The amount and nature of the income, both current and anticipated, of both parties;

(vi) The extent and nature of the resources and assets of each of the parties;

(vii) The amount of income of each that is "spendable";

(viii)The amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses;

(ix) The earning ability and capacity of both parties;

(x) Property awarded or given to one of the parties, either by the court or the other party;

(xi) The disposition made of the homestead or jointly owned property;

(xii) The health condition and medical needs of both parties;

(xiii)The duration of the marriage; and

(xiv)The amount of child support awarded.

c. Effect of Marital Fault

While a few states still require that a spouse be without marital fault in order to claim spousal support, in Arkansas, marital fault is generally not a factor in deciding whether alimony should be awarded. The main factors influencing the amount of the award are the requesting spouse's needs and the paying spouse's ability to pay. The purpose of alimony is not punitive, but to continue one spouse's duty to the other arising out of the marital relationship.

d. Types of Alimony

1) Permanent Periodic Alimony paid regularly (usually monthly) to provide for the maintenance and support of a spouse who has neither the resources nor the ability to be self-sustaining. It is modifiable by petitioning the court and demonstrating a substantial change in circumstances.

2) Lump Sum Alimony is not modifiable. The award is final and survives the death of the payor spouse.

3) Rehabilitative Alimony consists of periodic payments for a limited period of time calculated to enable a spouse to gain skills or education necessary so that he can then enter (or re-enter) the workforce and become self-supporting. This type of alimony is more common in situations where there are fewer marital assets to divide between the parties.

4) Reimbursement Alimony is neither modifiable nor terminable, to a spouse who supported the other spouse while the latter obtained a professional license or degree. The amount awarded in such cases is based on the amount of the supporting spouse's contribution, not the value of the professional license or degree. This award may be given even when the supporting spouse is not otherwise eligible for spousal support.

e. Termination of Alimony

Periodic alimony generally terminates upon the death of either spouse, or the remarriage of the recipient spouse. Alimony also ends if the recipient establishes a relationship with another person that results in a child and a court order directing the other person to pay support to the recipient of alimony. This new relationship is treated as the equivalent of marriage.

The continuation of alimony is not contingent upon the good conduct of the recipient. For example, in one case the court held that the husband, who was required by a divorce decree to pay alimony, was not relieved of that requirement when his ex-wife cohabited on a permanent basis with another man. Even though the new man was contributing to household expenses, he had no legal responsibility for the ex-wife's support, and therefore the support responsibility pursuant to the divorce decree remained intact. Likewise, Arkansas does not recognize any "de facto" marriage as a basis for terminating alimony.

f. Tax Consequences of Alimony

Generally, alimony payments are includible in the income of the recipient spouse and are deductible by the payor, unless stated otherwise in the divorce or separation instrument.

C. CHILD SUPPORT

1. Duty to Pay Support

Generally, both parents equally share a duty to support their children. An action for support may be brought at any time until the child reaches the age of 23.

2. Amount of Award-Guidelines

In a divorce action, the court is directed to make an award for the care of the children, as is "reasonable from the circumstances of the parties and the nature of the case." The award of support to one party for the benefit of the children is generally based on monetary need and ability to pay. Unlike alimony, however, the courts have less discretion in setting the amount because of the proliferation of child support guidelines that have been adopted by the states. In setting child support, the chancellor is directed to refer to the family support chart. A rebuttable presumption provides that the amount stated in the chart is the correct amount of support. In addition to the award of child support, the court order shall provide for the child's health care needs, including health insurance if available to either parent at a reasonable cost. The chart assumes that the custodial parent is employed. It further assumes that the noncustodial parent will have visitation every other weekend and for several weeks during the summer.

a. Determining Support

The amount of child support is based on weekly or monthly take-home pay. Support is based on all sources of income, not merely that received from the primary employment. Judges have more discretion in calculating the support to be assessed against a self-employed payor. Once the take-home pay is determined, the court refers to the chart. For example, if monthly take-home pay is $1,000, the custodial parent is entitled to $236 for one child and $342 for two children, if monthly take-home pay is $3,000, the custodial parent is entitled to $536 for one child and $771 for two children. At the maximum take-home pay levels, the custodial parent is entitled to 15% for one child and 21% for two children. After determining child support under the chart, the court may consider other matters that may have a strong bearing in determining whether the amount of support is equitable. For example, the chancellor may consider the payor spouse's other children, even if not supported under a court order, in determining the financial ability to support another child.

Recently, the Court held that the trial court properly relied on the net-worth approach only after determining that the appellant's tax returns were unreliable. Pursuant to Administrative Order No. 10, a deviation from the child support guidelines is allowed when tax return figures are untrustworthy. Note, that in this case, the Supreme Court explicitly endorsed the correct method to apply the net-worth approach. It involves establishing a beginning net-worth at a start of a relevant period and ending net-worth at the end of the period and considers living expenses as allowed deductions for the same period.

Arkansas is one of the most liberal states in defining income for purposes of child support. For example, a recent appeals court opinion affirmed a trial court's decision to award fifteen (15) percent of a father's stock sale's proceeds to the mother, but also affirming the trial court's previous order requiring the mother to account for any expenditures derived from the lump sum received from the sale of the stock.

b. Tax Exemptions

The court has authority to give one parent the right to claim the children as tax exemptions. Such an award may justify or necessitate a deviation from the family support chart.

c. Private Agreements Not Recognized

Generally, courts do not recognize private agreements between the parties for the payment of child support; nor do voluntary expenditures by the payor reduce the amount of child support arrearages.

d. Retroactive Support

Because a parent has a legal duty to support a child even without a court order, an award may be retroactive and is not limited to reimbursement of actual support expenses.

3. Independent from Visitation Rights

As visitation is primarily for the benefit of the children, a noncustodial parent's obligation to pay child support is independent of visitation rights. The custodial parent generally cannot deny visitation rights to a noncustodial parent who fails to make child support payments.

4. Termination of Duty of Support

The duty to pay child support automatically terminates when the child reaches, age 18, unless the child is still in high school. In fact, recent changes in Arkansas law extend the obligation to pay child support under certain circumstances with a new provision that states that the support obligation continues, "if the child is still attending high school, upon the child's high school graduation or the end of the school year after the child reaches nineteen years of age, whichever is earlier." Child support also terminates when the minor is married or emancipated. However, the duty to support a child does not cease at majority if the child is then disabled and needs support. The law imposes no duty to support if the child becomes disabled at a later time. In addition, an agreement of the parties may allow child support to continue past the age of majority.

5. Full Faith and Credit for Child Support Orders Act

Under the Full Faith and Credit for Child Support Orders Act, full faith and credit must be given to another court's child support order if

(i) the court had jurisdiction over the matter and the parties, and

(ii) the parties had reasonable notice and an opportunity to be heard.

Once a court enters a child support order consistent with the FFCCSOA, the court has continuing, exclusive jurisdiction to modify the order:

(i) if the child or one of the parties resides in the state; or

(ii) when the child and the parties no longer reside in the state, if the parties consent in open court or in a record that the court may continue to exercise jurisdiction to modify the order.

6. Tax Consequences of Child Support

Child support payments are neither includible in the income of the custodial parent nor deductible by the payor parent.

D. MODIFICATION OF ALIMONY AND CHILD SUPPORT AWARDS

1. Alimony

a. Only Periodic Alimony May Be Modified: Courts retain the authority

ARKANSAS FAMILY LAW OUTLINE SUMMARY