Arkansas Separation Statutes: Everything You Need To Know

Separating From Your Spouse In Arkansas – The Basics

In the midst of a complicated divorce or separation, Arkansas separation laws determine how property, debts, and finances are divided. The laws of the pleasant southern state have long protected the rights of marital assets, both in the midst of a divorce and also in the days leading up to a planned yet amicable separation. Often a couple will choose to separate as a form of stress release or as a way to avoid the trials of a messy divorce. An official but informal separation often allows a couple to decide whether they want to dissolve the union and move forward with a divorce without the expenses and emotional stress of a lengthy separation period. Knowing the laws that stipulate separates within the state of Arkansas is important before making any moves that affect a marriage and should only be done after consulting with a reliable attorney who knows the state separation laws. In Arkansas, the laws of separation are very specific in nature. Rather than a formal divorce, a legal separation is a temporary, court-approved period for a couple to live apart. During this time , a married couple has the opportunity to decide the future of their relationship without the risks associated with a bad divorce. A legal separation may provide financial protection for both spouses and their children, affording each spouse the time to consider their next step legally and emotionally. Separation laws may also protect a spouse from being held responsible for the debts of another. Separation continues under the protection of court intervention until it is determined by a judge to be illegitimate or when the couple decides to reconcile. Any action that harms a spouse is illegal while under court-approved separation. While a legal separation is not always necessary, if a couple plan to live separately for at least six months or more, it can protect their rights against the odds of a bad divorce. Separated couples may decide to file a divorce or reconciliation after a couple of months have passed, or they could go on indefinitely separated without filing for divorce. Either way, a separation is the legal protection a couple needs during this sensitive time.

Compulsory Separation Requirements and Laws in Arkansas

To achieve a state of legal separation in Arkansas, there are no statutory requirements per se such as residency requirements, specific forms or filings. That said, in order to achieve a legal separation in the state of Arkansas, the parties must agree that they will live separate and apart, without cohabitation and without the interruption of the marriage bonds. There has been some inconclusive law regarding whether or not a formal divorce proceeding must be instituted or completed in order to effect a legal separation in the state of Arkansas. The general consensus among the Arkansas circuit courts is that a pending divorce case must have been filed and a legal action for divorce must be ongoing for an action for separation to exist. As such, there typically must be at least one year of separation before a party may seek a divorce in Arkansas, and if an agreement has been reached with regard to custody or division of property, that agreement can be incorporated into a decree of divorce in an action for divorce that has sought separation in the pleadings.

Separation vs. Divorce Laws in Arkansas

A Separation, in the family law sense, will mean different things to different peoples. Some people consider a separation to be a "trial period" before filing for divorce. Others want to ensure that they are actually going to end the marriage, and won’t spend years separated and never divorced. Some people want to separate with no intent to proceed with a divorce at all, and want to move out and stop living in the same household as their spouse.
Legally speaking, there is no valid Separation in Arkansas, and a Separation is not recognized by the State of Arkansas or the Courts. The sole action provided in the law with the term "separation" in the title is a Petition for Legal Separation. This type of separation is listed in the dictionary, and is just a step before filing for divorce. It requires property division, child custody arrangements, child and spousal support, and the related issues addressed by the divorce process.
In general, there are two reasons why spouses separate without a divorce: "We may divorce down the line" or "We are not divorcing period." In these instances, the issue may be a conflict regarding the parties’ belief that they are "still married" as they lived apart, but without a divorce. In other words, they have a physical Separation but are not legally separated. To the State, if the parties are married, they are married. Living apart is not a legal Separation.
This leads to the problem with "separation" in the family law context in Arkansas. If a spouse decides to move out of the house into a new place, is that a trial period before divorce? Or is that a rejection of a divorce? Or does that not matter because they are married to begin with? The answer is either "yes" or "depends" or "no" – or any combination thereof.
In that situation, the legal effect of a physical separation in Arkansas is as if you were never separated at all. You are still married and have all of the rights and obligations associated with being married, except with the practical advantage of living in different homes.
If you and your spouse decide to apply for a legal separation (more on that below), on the other hand, you have legally divorced without any further action. Your marital status legally reverts to single, so you can remarry if you wish. The Courts will also divide your property as if you were divorced, and consider all relevant evidence and arguments about child custody and child support. The Judges in Arkansas have the authority to consider the issue of spousal support as well. In other words, a legal separation in Arkansas is only one step away from divorce.
So whether you separate in the sense of physically separating from your spouse, or using a legal separation as an end-run to divorce, the legal realities of divorce will apply to a legal separation in Arkansas. This is because the Courts do not recognize a legal separation as its own thing – you are either legally married all the way through the courts issuing a divorce decree, or you are legally divorced all the way through the courts issuing a separation decree.

Temporary Orders Necessary During Separation

Like other states in the country, Arkansas law provides for the legal separation of spouses. Several reasons can lead to such circumstances, including the need for physical separation for physical safety reasons, or just to provide for some breathing room to work out differences and allow spouses to see how they feel about permanent divorce. The courts may encourage couples to seek reconciliation, but if there are children involved, for example, the courts will take notice of their welfare and are empowered to issue temporary orders during the period of separation to address issues arising in the separation process. As divorces may be finalized within months to several years, there is a great need to provide, at the very least, some temporary measures that will ensure a more certain process to the ultimate divorce.
Temporary orders can be sought by one or both spouses who are seeking clarification and direction from the court as to the behavior or cooperation of the other spouse while the case proceeds through the normal course. Most cases of spouses actually getting the legal separation end up with them reconciling and remaining married. Temporary orders serve to frame the issues for the court and protect the parties from unfair conflicts that would harm them in the divorce process.
The most typical types of issues for which a spouse may seek a temporary order are: temporary possession and/or use of the marital home, child custody/visitation and support orders, division of community property, spousal support, exclusive use of a vehicle and other debts, and restraining orders, among others. The process is not as formal as a full-blown court hearing, but it is relatively straightforward.
An experienced Arkansas family law attorney can walk you through the process of obtaining and enforcing temporary orders during your separation and divorce proceedings.

Children and Separation in Arkansas

Although it is a bit of a misnomer, legal separation may sometimes represent a more formally accepted way for spouses to live apart apart from one another while remaining legally married. There are pros and cons that apply to all aspects of the process; however, when children are involved the differentiation between legal separation and divorce is even more significant. A legal separation allows parents to negotiate custody and visitation while still remaining married. This has a greater emotional impact, allowing both parents to have input on the outcome of their case. Once the divorce process begins, that opportunity may be lost and it is understood that a divorce judgement has the potential to be a lot more difficult to amend as life circumstances change than a separation judgement or agreement. When both parents are given an opportunity to negotiate custody and visitation arrangements , the primary focus is increased on the needs of the children and their right to equal access to both parents when all possible. The fact that the couple is involved in negotiations means that they are not fanatically fighting over time with the child, but instead attempting to develop a plan of action that offers the child the optimal balance between both parents. The emphasis on negotiations will also make it easier to agree on payment amounts and frequency of child support. This comes from the fact that both parents are willing to negotiate instead of given ultimatums as to the amount and form of support.

The Money and Financial Aspect of Legal Separation

Financial Implications of Legal Separation in Arkansas
Regardless of the specific grounds for separation, most people want to understand how it will impact their finances. In Arkansas, the court will adjudicate any issues regarding property and debt division as part of a legal separation.
If one spouse has been financially dependent on the other, the court frequently awards alimony for a specified duration of time. The dependent spouse is often granted the right to hour occupancy of the marital home for a specified period of time.
The court will usually apply the same guidelines for property division, child support and alimony to separations as divorces. Separate property remains separate property even if the court enters a legal separation. Separate property can include:
Separate property can never be divided. However, any appreciation in value that happened during the marriage can be subject to division. Any debts acquired during the marriage will be marital debts, regardless of whose name is on the debt. Even debts acquired by a spouse after a spouse files for divorce will be marital debts.
Unlike the financial commitments that come with a divorce, one spouse may retain health coverage through the other’s insurance plan. If the couple reconciles, the couple is still married, but they can return to their normal insurance coverage.
Filing for Legal Separation in Arkansas and Early Actions That Can Create Problems
Arkansas law states that a legal separation must be based on a "living apart" if parties have lived apart one year, unless the separation agreement is signed.
There are many actions spouses can take before a legal separation or divorce that can undermine equitable distribution of property, debts and assets. Both parties need to avoid selling or spending marital assets, making major purchases and building up debt.

How Do You Move from Separation to Divorce?

In Arkansas, if a couple does not reconcile after a legal separation and instead wishes to proceed with divorce, they may do so by filing for divorce in the Circuit Court of the county where they reside. A legal separation is generally only intended to be a temporary measure in the hopes that the couple will work through their issues and reconcile. However, if a legal separation does not work, the parties may wish to transition to a divorce. An attorney can smoothly transition a legal separation to a divorce with the filing of a motion to convert the case to a divorce and in most cases, the case will be converted without a hearing.

Engaging a Family Law Lawyer

While the above information provides a good starting point, Arkansas separation laws can be complex and vary from case to case. There’s simply no substitute for the advice of a qualified family law attorney if you are considering separation. An attorney can provide important legal advice that’s unique to the situation at hand – which is especially important, given that any litigator will tell you that no two family law cases are alike.
For instance, Arkansas family law courts have the discretion to split property in ways that may seem unfair to people who haven’t been steeped in the law: a stay-at-home mom may receive more than half the marital estate, a father with joint custody may be ordered to pay child support and more than half a woman’s military retirement may go to her ex-spouse . A good family law attorney understands these idiosyncrasies and can help you get a fair result.
That’s not all a family law attorney does, though. An experienced lawyer can also explain your options for dealing with serious problems such as domestic violence; can help you navigate the complicated process of pursuing adoption; can determine whether your circumstances warrant seeking legal separation instead of divorce; and can negotiate an extremely complex contested divorce on your behalf.
Whatever the situation, it’s always in your best interest to consult an experienced Arkansas family law attorney before making any decisions.