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Arkansas Legal Separation
Legal Separation in Arkansas

In Arkansas, a legal separation is particularly complicated because the state recognizes two types of marriages and three kinds of legal separations, so negotiating a separation agreement requires knowledge of state law and good negotiating skills. In Arkansas, there are laws about a legal separation that are unique to the state. (Family law is in the Arkansas Code Title 9, Chapter 12.) The separation route a couple uses depends on their preferences and the type of marriage the spouses entered.

Couples may request a legal separation instead of a divorce for religious reasons, or to maintain certain insurance benefits that would otherwise end in a divorce, or when a divorce is forthcoming.

Legal separation agreements deal with issues that often lead to conflict, and they describe the terms and conditions by which the spouses agree to separate. The agreement addresses:

  • child custody and support (who receives primary custody of any children and visitation rights for the visitation parent);
  • child support;
  • property division (including possession of the marital home).

It divides property such as vehicles, furniture and assets and liabilities and determines alimony (the couple decides whether either spouse is obligated to pay some sort of support to the other). In these affairs, compromise works better than battle.

Because Arkansas recognizes two different types of marriage - covenant and standard - court approval of a legal separation depends on the type of marriage a couple has. In a covenant marriage, the requirements for a legal separation are more difficult than they are in a standard marriage. In addition to counseling from an "authorized" source (a licensed marital counselor or a priest, rabbi or minister), the petitioner must prove that his or her spouse has: "(a) committed adultery; (b) been convicted of a felony and has been sentenced to death or imprisonment; (c) has committed physical or sexual abuse of the spouse or one of the children of either spouse; (d) is addicted to alcohol for a period in excess of 1 year; (e) is endangering his or her life or (f) is committing "indignities" so as to render continued married life intolerable." Legal separation may be granted without any of the foregoing where the parties have lived separate and apart without reconciliation for a period of two years. By comparison, in a standard marriage, the court enforces a separation agreement that is signed by both spouses and is fair.

Arkansas permits divorce after 18 months of living separately and apart, so this separation is grounds for divorce. In this routine, a party is legally separated while waiting out the time until he or she files for divorce. Arkansas recognizes separation agreements as legally binding documents. If the spouses negotiate an agreement, it sets enforceable terms for custody, spousal support, child support, and even property division after they sign it. When they file for divorce, the agreement can be merged into a divorce decree.

If the spouses cannot agree, one can file a complaint for an order of separate maintenance, which is similar to filing a complaint for divorce. This asks the court to decide things like custody, support and property division. The court issues an order that includes the judge's rulings, just like a divorce decree, except that the marriage is not legally terminated.

Arkansas permits a divorce a mens et thoro ("from bed and board"). Like a complaint for separate maintenance, the court decides issues and terminates the marriage. The spouses are divorced, but neither may remarry unless a second court ruling grants them "absolute divorce " - a vinculo matrimonii ("from the bond of marriage"). A divorce from bed and board is a "limited" divorce.

Complaint

The petitioner must file a petition for separation.

Separation Agreement

A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.

Grounds

Grounds for a legal separation include:

  • adultery
  • spouse is a convicted felon with a death or life sentence
  • physical or sexual abuse upon spouse and/or children
  • two years of living apart without reconciliation, or
  • habitual drunkenness

Residency

The Arkansas Code states that either the husband or the wife must be a resident of the state for at least 60 days before filing for divorce or legal separation. A divorce or legal separation degree can be issued no sooner than 30 days after the petition is filed. The petition is filed in the county where one spouse resides.

Procedure

The spouses - the petitioner and respondent - must attend a hearing before the legal separation can become complete. The judge asks a few standard questions and then enters an order of separation. If the spouses have not reached an agreement, the judge conducts a hearing and enters an order.

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