Getting a Divorce-The Basics from Start to End

How to start the process:

A divorce starts when a party to a marriage (husband or wife) files a complaint for divorce in circuit court in the county where they currently live. The Plaintiff is the person filing for the divorce and the Defendant is the person that the plaintiff wants to divorce. In Arkansas, the spouse filing for divorce must live in Arkansas for at least 60 days before a complaint can be filed. If the husband and wife have any children, the children must live in Arkansas for at least six months before the court can make a decision on custody and visitation.

In order to get a divorce, the plaintiff must prove that there are reasons (grounds) for divorce. The most popular grounds for divorce are general indignities (poor treatment of a spouse) and being separated for 18 months. Once grounds for divorce are met, the defendant must be notified about the divorce. Notifying the defendant is done by serving a complaint and a summons to court.

Service can be completed by using a process server or sending the paperwork by certified mail. If the plaintiff has done all they can to find the defendant and cannot locate them, it is possible to serve them through publication. This type of notification is called ‘service by warning order.” Once the defendant has been served, they have 30 days to respond with a written answer to the court. If there is no answer filed, then the court may grant the divorce without any notice to the defendant.  In the event that the defendant is in jail or prison or active duty military, then special rules apply and the defendant has a different amount of time to respond than they would under normal circumstances.   

Settling Issues:

The plaintiff must wait at least 30 days from the day the complaint was filed to finalize the divorce. If the plaintiff and defendant agree on all issues of the marriage, then the case may be finalized. If there is no agreement, the spouse that filed for divorce should ask the court to set a hearing date. At the hearing, the judge will decide on all outstanding issues. In all cases, the plaintiff must prove the reason (grounds) for divorce as well as 60 days of residency in Arkansas. The only time fault does not need to be proven is if the parties have been separated for more than 18 months. Grounds and fault can be proven by testimony from the plaintiff as well as witnesses.

A judge has the authority to decide on a number of issues. Some of those issues include:

Custody & Visitation:

The law assumes that parents should have joint custody of their children unless domestic violence is involved. If the parents are unable to come to an agreement on custody, then the judge will decide what the best interest of the children are. If the judge decides that joint custody will not work, then the judge will decide which parent will have custody and which parent will have visitation rights. The judge can also decide if restrictions apply to visitation rights.

Child Support and Alimony:

The parent without custody rights will be ordered to pay child support. The judge may also order the parent without custody to pay alimony (spousal support). Alimony awards will be based on the facts of the case, including if one spouse has a financial need and the other can pay.

Property & Debt Division

 Any property or debt gained during the course of the marriage can be divided during the divorce. Division of property and debt can be settled between the parties. If no agreement can be made, then a judge will decide and issue an order of fair division.

The Final Decree:

Once the judge orders a final divorce decree, the terms cannot be changed simply because a party does not like the terms or changes their mind. Custody, visitation, and support are the only things in the decree that can be changed at a later date. The decree will list all rights and responsibilities of each parent. If one party does not follow the decree, then the other may file a motion for contempt of court and ask the court to enforce the rules of the decree.

If you or someone you know needs help with the divorce process, give our Helpline a call at 501-376-3423. Our representatives are ready to connect low-income Arkansans with one of our attorneys. All our services are provided FREE of charge.

AUTHOR: CASSIUS PRICE, PART-TIME ASSISTANT PRO BONO COORDINATOR/LAW CLERK FOR THE CENTER FOR ARKANSAS LEGAL SERVICES