Divorce
The decision to divorce is a difficult and agonizing one, especially if children are involved. It creates significant stress on everyone involved, and it often precipitates many life changes along with the accompanying financial stress. Our attorneys have the experience, skill, and knowledge that is necessary to understand the state of Arkansas' continuously evolving divorce laws. Our attorneys understand the pressures involved and they work to make the divorce process as smooth as possible and obtain the best results possible for our clients. When a marriage cannot be saved, the state of Arkansas allows the parties to dissolve the marriage through a divorce. Arkansas is not a “no-fault” state and therefore the spouse seeking to dissolve the marriage must prove certain grounds required by law. These grounds must be proven with specificity and must be corroborated. The closest to a “no-fault” divorce in Arkansas is when the parties have lived separate and apart for more than 18 months. The following are the grounds necessary to obtain a divorce in Arkansas:
- Impotency at the time of and during the marriage.
- Conviction of felony or infamous crime.
- Habitual drunkenness for one year.
- Cruel and barbarous treatment.
- General Indignities.
- Adultery.
- Separation for eighteen (18) months.
- Separation by reason of insanity for three years.
- Failure to support.
A majority of divorces in Arkansas are granted on the basis of “general indignities.” An alternative to a traditional divorce is what is called a "separation from 'bed and board,'" in which a Court can grant a temporary division of property while the parties live separate and apart. For an evaluation of your case and to determine if you have statutory grounds for divorce, contact us today to schedule a free consultation to discuss your options.
Child Custody
When children are involved, a divorce can become especially difficult. Parents are especially concerned about their children and who will have custody and when can the non-custodial parent exercise visitation. When it comes to child custody, courts have no preference or presumption in favor of either parent when the parents have been married. A common misconception is that the mother always is granted custody. This is certainly not the case. The only question the court bases its decision as to the custody determination is "the welfare and best interest of the child." If the parents have not been married at any time from conception to birth, then custody is legally in the mother, unless a court decides otherwise. Sometimes divorcing parents want to have “joint custody.” Joint custody is disfavored by the courts in Arkansas. However, Arkansas law specifically permits the court to consider such an award. As between the parents and a third party, there is a legal preference for the parent to have custody "unless the parent is proved to be incompetent or unfit." This is so even under circumstances where the child might be better off with a third person. Arkansas courts hold that "the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent." Coffee v. Zolliecoffer, 93 Ark. App. 61 (2005). A court may give weight to the child's preference as to custody, but is not bound by the child's wishes. Sometimes parents fight very hard over who will get custody of the children.
In that case, it is becoming more common for the court to appoint an attorney ad litem to look to the best interest of the children. The initial custody determination is of particular importance. This is such because to modify custody at a later date, the burden is on the party seeking modification to show a material change of circumstance such that it is in the best interest of the child for the modification to occur. The Arkansas Supreme Court has held that this requires a more stringent standard whereby the party must prove additional factors showing why a modification of custody is warranted. The factors are numerous and each case is different, therefore, in order to determine if your case warrants a modification of custody, contact us to schedule a free consultation so we may evaluate your case and discuss your options.
Visitation
A caring relationship with both parents is essential to the healthy upbringing of a child. Therefore, in most cases, the court will award visitation with the children. In considering reasonable visitation, the court considers many factors. Visitation is always modifiable, but like modification of custody, the courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children). However, unlike a modification of custody, the standard is not as great. Visitation may be modified upon a proper showing that it is a change to which the petitioning parent is reasonably entitled because of a change of circumstances pertinent to visitation and also that the welfare and best interest of the child dictate a change. An example of a circumstance warranting a change is when either parent relocates so that the current visitation schedule is no longer practical is a sufficient change of circumstance to modify visitation. There are specific laws that provide for visitation and access by third parties. Regardless of the degree of blood relations, siblings may petition for reasonable visitation. Grandparents and great-grandparents may also petition for visitation under certain circumstances. Occasionally, the court will grant visitation to a person, not biologically related to the child, who has acted as a parent to the child, in loco parentis.
Grandparent Visitation
Grandparents may petition the court for the right to have visitation with their grandchildren or great-grandchildren only under certain circumstances. When a child is in the custody or guardianship of someone other than a parent, the court may grant visitation if it determines it to be in the best interest and welfare of the child to do so. However, the court has extreme discretion in determining whether to grant the petition. If the child's parents are widowed, legally separated, divorced or the child is illegitimate and the child is in the custody of one parent, then the grandparents or great-grandparents may also petition the court for visitation rights. However, the grandparents must overcome the rebuttable presumption that the custodian's denial of visitation is in the best interest of the child, by showing that the grandparent has "established a significant and viable relationship with the child" and that "visitation with the petitioner is in the best interest of the child." In other words, if the parent denies visitation with the grandparents, it is difficult (but not impossible) for the grandparents to be awarded visitation. As with custody, visitation awards take into account numerous factors. These factors are numerous and each case is different. Therefore, in order to determine if your case warrants a modification of custody, contact us to schedule a free consultation so we may evaluate your case and discuss your options.
Property Settlements
The division of property in divorce cases is governed by statute. At the time a divorce decree is entered all marital property will be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court will award property in an unequal distribution to achieve an “equitable division” to balance the economic situations of the parties. The court, in making such an equitable distribution will take into consideration:
- The length of the marriage;
- Age, health, and station in life of the parties;
- Occupation of the parties;
- Amount and sources of income;
- Vocational skills;
- Employability;
- Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income;
- Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and
- The federal income tax consequences of the court's division of property.
In the vast majority of divorces, the court will split the property equally. All property owned by each party before they married, or inherited during the marriage is “non-marital property” unless it was co-mingled (mixed) such that it becomes marital property. Examples of co-mingling include using joint income to pay off a mortgage obtained before the marriage, placing a spouse’s name on the deed to non-marital property, or placing proceeds into a joint checking account. There is a presumption that all property acquired during the marriage is marital property, with the burden of proving otherwise resting on the party seeking to prove the property is non-martial. All non-martiial property is returned to the party to which it belongs after a divorce. Although the court will divide the property of a marriage, most often the parties desire to split the property among themselves without leaving the division up to the judge. These property settlements are a contract between the parties subject to approval and incorporation into the divorce decree issued by the court. The general rule is that married parties may enter into a contractual agreement as to the settlement of all property rights between the parties except those relative to child support, custody and visitation. However, the court is not bound to accept the agreement and may reject either part of it or in its entirety. If the agreement is accepted and incorporated, but not merged into the decree, then the court cannot later modify the settlement agreement. There are many intricate details in drafting a property settlement agreement, and the pitfalls may come back years later to haunt the parties. Careful consideration must be given to the language used in the drafting of the agreement. The attorneys at Spears, Huffman & Butler possess the skill and knowledge to guide you through to a settlement agreement that is fair to both parties. Contact us today to schedule a consultation so that we may discuss your options.
Guardianship
A “Guardian” is one appointed by a court to have the care and custody of the person or of the estate, or of both, of an incapacitated person. An “incapacitated person” means a person who is impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate. Incapacitated persons also include persons under age eighteen (18) whose disabilities have not been removed and persons who are detained or confined by a foreign power or who have disappeared. The incapacitated person for whom the guardian is appointed is called a ward. Guardianships are not expansive powers over another person. The court will only grant such powers as are necessary due to the ward’s condition. Guardianship for an incapacitated person shall be:
(1) Used only as is necessary to promote and protect the well-being of the person and his or her property;
(2) Designed to encourage the development of maximum self-reliance and independence of the person; and
(3) Ordered only to the extent necessitated by the person's actual mental, physical, and adoptive limitations.
Once appointed, a guardian has specific fiduciary duties to the ward. A guardian has the duty to care for and maintain the ward and, if he or she is a minor, to see that he or she is protected, properly trained and educated out of the resources of the ward's estate. With great power comes great responsibility. A guardian is usually required to report the condition of his or her ward to the court, at regular intervals or otherwise, as the court may direct. If appointed as guardian of the estate, the guardian has a duty to
(1) exercise due care to protect and preserve it;
(2) To invest it and apply it as provided in this chapter;
(3) To account for it faithfully;
(4) To perform all other duties required of him or her by law; and
(5) At the termination of the guardianship, to deliver the assets of the ward to the persons entitled to them.
There are many reasons to appoint a guardian of either the person or the estate of a ward. Contact us today to discuss your case to determine whether a guardianship is appropriate.
We proudly serve clients located in Central Arkansas including: Benton, Bryant, Conway, Little Rock, North Little Rock, Russellville, Hot Springs, Cabot, Searcy, Jacksonville, Malvern, Arkadelphia, Sheridan, Sherwood, Maumelle, Mayflower, Pine Bluff, and all cities surrounding Saline, Pulaski, Grant, Garland, Hot Spring, Perry, Conway, Faulkner, Pope, White, Clark, Lonoke and Jefferson Counties.