Top Ten Common Divorce Questions

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Answered by Osborne & Wilmoth

Osborne & Wilmoth Law Firm is committed to providing you with skilled family law representation for the best possible outcome in all domestic relations cases. We have dedicated and knowledgeable attorneys who are experienced in negotiating and litigating a diverse range of family law practice areas. Contact us today to discuss divorce, legal separation, prenuptial and postnuptial agreements, property division, alimony, child custody, support, adoption, guardianship, and estate planning. We provide workable solutions for our clients in Northwest Arkansas. Compassionate law and fierce legal assistance form the foundation of our practice. 

Here are the top ten most common questions we get about divorce.

1. How long do I have to live in Arkansas before I can get a divorce in Arkansas?

You must prove residency by showing that you or your spouse has been a resident of Arkansas for sixty (60) days before filing for divorce and a resident of Arkansas for three (3) full months before the final judgment granting the divorce. Ark. Code Ann. § 9-12-307. 

2. How long do I have to wait to finalize my divorce?

You must wait 30 days from the date that you filed the complaint to finalize the divorce.

3. How are debts and property divided?

According to Ark. Code Ann. § 9-12-315, at the time a divorce decree is entered, all marital property is to be distributed one-half (½) to each party unless the court finds such a division to be inequitable. The trial court can make an unequal distribution of property.  In that event the court makes an unequal distribution of marital property, the court must take into consideration the following factors: 

(i) The length of the marriage; 

(ii) Age, health, and station in life of the parties; 

(iii) Occupation of the parties; 

(iv) Amount and sources of income; 

(v) Vocational skills; 

(vi) Employability; 

(vii) Estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; 

(viii) Contribution of each party in acquisition, preservation, or appreciation of marital property, including services as a homemaker; and

(ix) The federal income tax consequences of the court’s division of property. 

Ark. Code Ann. § 9-12-315 tell us that “marital property” means all property acquired by either spouse subsequent to the marriage except: 

(1) Property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and 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; 

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent; 

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

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

(5) The increase in value of property acquired prior to marriage or by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and 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, or in exchange therefor; 

(6) Benefits received or to be received from a workers’ compensation claim, personal injury claim, or social security claim when those benefits are for any degree of permanent disability or future medical expenses; and 

(7) Income from property owned prior to the marriage or from property acquired by gift or by reason of the death of another, including, but not limited to, life insurance proceeds, payments made under a deferred compensation plan, or an individual retirement account, and 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, or in exchange therefor. 

The court is not required to address the division of property at the time a divorce decree is entered if either party is involved in a bankruptcy proceeding.

4. Am I entitled to spousal support (sometimes referred to as alimony)? If so, how much?

It depends.  No two cases are alike and the facts of a case will determine if alimony is appropriate.  

An award of alimony lies within the discretion of the judge. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). The purpose of alimony is to rectify the frequent economic imbalance in the earning power and standard of living of the divorced parties in light of the particular facts of each case. Hiett v. Hiett, 86 Ark. App. 31, 158 S.W.3d 720 (2004). 

The primary factors to be considered in awarding alimony are the need of one spouse and the other spouse’s ability to pay. Kuchmas v. Kuchmas, 368 Ark. 43, 49, 243 S.W.3d 270, 273 (2006).  In order to make this determination, the judge will look at both parties’ income and expenses.  The judge will then turn to the secondary factors to determine if alimony is appropriate. 

Secondary factors to be considered include the following: the financial circumstances of both parties, the financial needs and obligations of both the couple’s past standard of living, the value of jointly owned property, the amount and nature of the income, both current and anticipated, of both husband and wife, the extent and nature of the resources and assets of each of the parties, the amount of income of each that is “spendable,” the amounts which, after entry of the decree, will be available to each of the parties for the payment of living expenses, the earning ability and capacity of both husband and wife, property awarded or given to one of the parties, either by the court or the other party, the disposition made of the homestead or jointly owned property, the condition of health and medical needs of both husband and wife, the relative fault of the parties and their conduct, both before and after separation, in relation to the marital status, to each other and to the property of one or the other or both, the duration of the marriage and even the amount of child support. This list is not exhaustive, but rather illustrative of the types of factors that the court should consider. Boyles v. Boyles, 268 Ark. 120, 124, 594 S.W.2d 17, 20 (1980). 

Fault is not a factor in the award of alimony unless it meaningfully relates to need or ability to pay. McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000). 

In awarding temporary spousal support only, the court may award 20% of net take-home pay plus child support. For a final hearing, the court should consider all relevant factors, including the Child Support Chart, to determine the amount of any spousal support to be paid. Supreme Court Administrative Order No. 10. The amount of spousal support can only be determined by careful consideration of the parties’ income, expenses, and the child support chart.  Unfortunately, there is no simple calculation.  

5. What income does the court consider when setting child support?

Income means any form of payment due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers’ compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for: 

1. Federal and state income tax; 

2. Withholding for Social Security (FICA), Medicare, and railroad retirement; 

3. Medical insurance paid for dependent children; and 

4. Presently paid support for other dependents by court order, regardless of the date of entry of the order or orders. Administrative Order No. 10 § III. 

Under Arkansas case law, the definition of “income” is “intentionally broad and designed to encompass the widest range of sources consistent with this State’s policy to interpret ‘income’ broadly for the benefit of the child.” Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005). All sources of a payor’s income are to be included in arriving at the sum of money upon which the amount of child support is to be derived from the Family Support Chart. Office of Child Support Enforcement v. Longnecker, 67 Ark. App. 215, 997 S.W.2d 445 (1999).  See Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002)(an inheritance is not income under the Child Support Guidelines; however, interest or income derived from an inheritance is income; McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001)(gambling winnings are “income” for child support purposes, but gambling losses must be subtracted for determining the amount); and Davis v. Office of Child Support Enforcement, 341 Ark. 349, 20 S.W.3d 273 (2000)(federal SSI benefits are not income under the Child Support Guidelines). 

Non-salaried employees are calculated as follows:

For Social Security Disability recipients, the court should consider the amount of any separate awards made to the disability recipient’s spouse and children on account of the payor’s disability. 

SSI benefits shall not be considered as income. 

For Veteran’s Administration disability recipients, Workers’ Compensation disability recipients, and Unemployment Compensation recipients, the court shall consider those benefits as income. For military personnel, see the latest military pay allocation chart and benefits. Basic Allowance for Housing (BAH) and Basic Allowance for Subsistence (BAS) should be added to other income to reach total income. Military personnel are entitled to draw BAH at a “with dependents” rate if they are providing support pursuant to a court order. However, there may be circumstances in which the payor is unable to draw BAH or may draw BAH only at the “without dependents” rate. Use the BAH for which the payor is actually eligible. In some areas, military personnel receive a variable allowance. It may not be appropriate to include this allowance in calculation of income since it is awarded to offset living expenses which exceed those normally incurred. 

For commission workers, support shall be calculated based on minimum draw plus additional commissions.

For self-employed payors, support shall be calculated based on the last two years’ federal and state income tax returns and the quarterly estimates for the current year. A self-employed payor’s income should include contributions made to retirement plans, alimony paid, and self-employed health insurance paid; this figure appears on line 22 of the 41 current federal income tax form. Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. 

Also, the court shall consider the amount the payor is capable of earning or a net worth approach based on property, life-style, etc. Administrative Order No. 10 § III. For “clarification of the procedure for determining child support by using the net-worth method,” see Tucker v. Office of Child Support Enforcement, 368 Ark. 481, 247 S.W.3d 485 (2007). Also see Cowell v. Long, 2013 Ark. App. 311.

6. If the non-custodial parent is unemployed am I entitled to child support?

Yes.  Being unemployed does not relieve a parent of the obligation to pay child support.  If a payor is unemployed or underemployed, the court may consider the reasons why. If earnings are reduced voluntarily and not for reasonable cause, the court may attribute income to a payor up to his or her earning capacity, including consideration of the payor’s life-style. Income of at least minimum wage shall be attributed to a payor ordered to pay child support. Administrative Order No. 10 § III. 

7. Who gets to claim the child for income tax purposes?

This is determined by the IRS.  Allocation of dependents for tax purposes belongs to the custodial parent pursuant to the Internal Revenue Code. However, the Court has the discretion to grant dependency allocation, or any part of it, to the noncustodial parent if the benefit of the allocation to the noncustodial parent substantially outweighs the benefit to the custodial parent.

8. Can child support be increased or decreased?

Generally speaking, child support is always subject to modification.  A change in gross income of the payor in an amount equal to or more than twenty percent (20%) or more than one hundred dollars ($100) per month would be a material change of circumstances sufficient to petition the court for modification of child support. Ark. Code Ann. § 9-14-107.

9. When does the child support obligation terminate?

Unless a court order for child support specifically extends child support, the duty to pay child support automatically terminate by operation of law: 

When the child reaches eighteen (18) years of age unless the child is still attending high school. 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 (19) years of age, whichever is earlier; 

When the child is emancipated by a court of competent jurisdiction, marries, or dies; or 

Upon the entry of a final decree of adoption or an interlocutory decree of adoption that has become final under § 9-9-201 et seq. and thereby relieves the obligor of all parental rights and responsibilities. Ark. Code Ann. § 9-14-237. 

The court may provide for the payment of child support beyond the eighteenth birthday of the child to address the educational needs of a child whose eighteenth birthday falls before graduation from high school so long as such child support is conditional on the child remaining in school. 

The court also may provide for the continuation of support for an individual with a disability that affects the ability of the individual to live independently from the custodial parent. Ark. Code Ann. § 9-12-312. See Kimbrell v. Kimbrell, 47 Ark. App. 56, 884 S.W.2d 268 (1994). 

10. My child is over the age of 18 and there is unpaid child support is that still owed?

Yes.  Even if child support terminates by operation of law, any unpaid child support obligations owed pursuant to a child support order remains outstanding. Ark. Code Ann. § 9-14-237.

Experienced Family Law Lawyers

We have over 43 years of combined experience litigating all areas of family law. Our law firm and the attorneys, Ken Osborne and Sammi Wilmoth, both have vast trial experience and are familiar with and have practiced in front of the judges for many years. Our attorneys are familiar with the legal environment and regularly try cases in Benton County, Washington County, and Madison County. Although we will never back away from a trial, we likewise have a philosophy of trying to get things worked out if it is to our client’s advantage.

No Child Custody Battle is too Big or Small

While some firms may fight for the sake of a fight we try to work for a solution if it is possible. Unnecessary fights create unnecessary expenses, however, we won’t back away from a fight. We fiercely represent our clients at trial if need be. We have handled divorces for as little as $1000 dollars with assets of as little as $500 dollars upwards of millions of dollars. No case is too big or too small. Child custody battles can be extremely difficult on our clients and we do everything we can to make the experience go as smoothly as possible. We have been handling family law battles since 1988. We would like to handle yours.

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