Family Law

Family law is the term that is applied to the laws and rules developed regarding family relationships. Family law rules define not only the relationships between members of a family but also between a family and society as a whole. More than any other area of the law, family law reflects the values society shares regarding how people who are related should treat each other.

Typically, family law attorneys assist people with the making and breaking of family relationships. Specific areas of representation usually include marriage and relationship planning, divorce, paternity, child custody and child support. Some family law attorneys also provide assistance in the area of adoption. When you are faced with an important life decision regarding a key family relationship, the advice and assistance of an experienced family law attorney often proves crucial to your understanding of the issues involved and your satisfaction with the ultimate outcome of the family-related concern you face.

Marriage

Marriage is a legal and business union as much as it is a romantic one. Arkansas law prohibits marriage to more than one person and marriage between close family members. Some of the more common limitations are:

A prohibition against marriage between brothers and sisters, parent and child and marriage between aunt or uncle and niece or nephew.

Minimum age requirement without parental consent is 18 years. With parental consent, minimum age is 17 for males and 16 for females.

Arkansas also requires a ceremony of some kind with a licensed public or religious official.

Federal and state laws give married couples many benefits, including:

    • Certain tax privileges;
    • Federal benefit rights, such as social security, disability, unemployment, veterans’ pension and public assistance benefits;
    • Inheritance rights under state intestate succession laws;
    • Claimant rights for loss of consortium;
    • The right to make medical decisions about your spouse in the event of disability; and
    • The right to legally protect marital communications.

Divorce

A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce gives each person the legal right to marry someone else. It also legally divides the couple’s assets and debts and determines the care and custody of their children.

A divorce can be uncontested, meaning you and your spouse agree on everything, or contested. Call us to schedule a free visit where we can discuss your case and help you determine if your case might be uncontested, where the attorney fee starts at $395 plus Court filing fee for a basic case.

In Arkansas you need to prove fault, commonly referred to as “grounds,” to be able to obtain a divorce. The only form of “no-fault” divorce, where it is not required to prove any fault, is when the parties have lived separate and apart for 18 months. When that occurs, either party may obtain a divorce, even if the other party does not consent to the divorce. The other common grounds for divorce in Arkansas are “general indignities” which means the at-fault party has made the other party’s life intolerable. Other less common grounds exist for divorce in Arkansas and an experienced attorney can help you determine what role grounds will play in your divorce.

The primary issues to be decided during a divorce are alimony or spousal support, property division, and, if there are children, child custody and visitation and child support. When spouses agree, they can usually obtain a divorce quickly. More typically, divorcing spouses have disputes regarding their post-marriage financial arrangements and the care and custody of their children.

Arkansas is a community property state, where marital assets are split equally. If agreement is not reached about division of property, a trial is held and the Judge will divide your property evenly between the parties. When this happens, all property is sold at auction, often at greatly reduced values, and the money is then divided. Working with an experienced attorney can sometimes help avoid the necessity for such an auction. Alimony is also a factor that can be agreed on by the parties or decided by the Judge at trial. In Arkansas, alimony is not normally considered unless the marriage is one of long duration, which is defined as ten years or longer. Alimony is calculated by evaluating one party’s need and the other party’s ability to pay. Property division and alimony are often hotly contested and the early advice of an experienced family law attorney can greatly impact the ultimate result.

Child Custody & Visitation

The care and upbringing of children following divorce is often an ongoing source of conflict for divorcing parents. Custody must address both physical custody, or the rights and responsibilities regarding the day-to-day care and activities of their children; and legal custody, or the legal rights and responsibilities associated with the child’s upbringing. Sometimes the couple agrees to an arrangement and sometimes the court determines one for them. In the past, courts routinely gave mothers physical custody and gave fathers visitation rights. Today, the courts have begun to realize that sometimes it is in the best interest of the children that they reside with the father. The Judge looks at the individual circumstances and decides whether it is in the best interest of the children to live with the father or the mother. Many parents believe that a child is allowed to choose where to live but Judges in NW Arkansas do not allow a child to make that decision, although they may sometimes agree to listen to what a child has to say. However, they do not want a child of any age to testify. Courts also do not want to see siblings separated and income is not typically considered when the Judge decides where the children will best flourish. Some questions that the Judge will consider when making a custody decision are:

    • Who has been the primary care giver?
    • Which party is most likely to foster a good relationship with the non-custodial parent?
    • Which party is most likely to care about the child’s academic performance?
    • Has one of the parties engaged in an adulterous affair?
    • Does one of the parties abuse alcohol?
    • Has one of the parties been charged or convicted with a misdemeanor or felony?
    • Which party is able to provide a separate bedroom for the child?

Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor any custody agreements divorcing parents reach regarding their children. When custody is contested, some courts will require parents to participate in a mandatory mediation session. Mediation is an alternative dispute resolution process where divorcing couples work with a specially trained neutral third party to try and resolve some or all of their disagreements. If mediation is unsuccessful, the Court will determine custody. The Court will reach decisions about custody and visitation after considering what arrangement will serve the best interests of the child. Courts often use custody evaluations performed by an outside expert to help them reach such a determination.

Except when parties agree otherwise, the Court will normally impose standard visitation and custody orders. A typical visitation schedule allows a non-custodial parent to see the children one night a week, every other weekend and some portion of school and summer holidays. In order to change a court-ordered custody and visitation schedule the parent seeking the modification must show a substantial change in circumstances since the divorce decree.

Child Support

Biological parents must financially support their children. That obligation lasts until the child reaches 18 or graduates from high school, whichever is longer, unless the child is disabled. The responsibility to provide support in the form of regular payments generally arises when one parent has primary custody of the child. Either parent may be ordered to pay support depending upon how custody is arranged. An unmarried mother may also file a petition for child support in family court and an order for support will be entered once paternity has been established.

The amount of support is set after the needs of the child and the parent’s income are assessed through the use of specific guidelines. The paying parent must regularly make the ordered payments, normally by payroll deduction to the Arkansas Child Support Clearinghouse. Failure to remain current with child support obligations exposes the paying parent to significant penalties. Along with the family Court, the office of Child Support Enforcement has the power to suspend professional or business licenses, take away driver’s and recreational licenses. The Courts may also require payment of future owed sums in advance or place non-paying parents in jail when child support obligations are overdue.

Once support has been ordered, both parents have the right to request changes if there is a change in the financial situation of the paying parent. Paying parents face a difficult time when making a request that support be reduced. Because of the requirements involved in child support, parents can benefit from the advice and involvement of an experienced family law attorney when child support issues arise.

Adoption

Adoption is the legal procedure that allows a family to make a child who is not biologically their own part of their family. Every adoption, whether foreign or domestic, requires the action and approval of a court to become final.

Arkansas has measures in place to assess the fitness of the adopting parents. Upon adoption, adopted children generally receive all the benefits afforded to natural children and parents owe adopted children all the legal duties of care and support owed to a natural or birth child of the marriage.

Adoption relieves birth parents of the financial responsibilities they owe their children. In the past, adoption often meant birth parents relinquished the child forever without the privilege of seeing the child or being otherwise involved in the child’s life. However, over the past several decades, open adoptions have become more common and adoptive parents sometimes allow more contact with their children after the adoption becomes final.

Family law attorneys who offer adoption-related services can help both adoptive and birth parents throughout all phases of the adoption process.

Conclusion

Family relations create a host of legal consequences. Whether you are contemplating marriage or divorce, or are considering adoption, an experienced family law attorney can explain the laws that apply to your particular situation and help you understand their effect so that you may make the best choices for you and your family.

 

Marriage

Marriage is a voluntary, private contract between a man and a woman. While it is a personal and emotional commitment, it is also a legal relationship that changes the legal status of both parties. The legal technicalities of marriage are best understood with the help of an experienced family law attorney. The legal rights and… Read More

Family Law Information Center

More than 67% of newlyweds believe the most serious conflict in their first year of marriage is over money. We Help People At Difficult Times Springdale Divorce Lawyers Carroll County Child Custody Attorneys Are you considering a divorce, but you don’t know how to proceed? Do you want to modify your divorce decree to get… Read More

Family Law Overview

Family law is the term that is applied to the laws and rules developed regarding family relationships. Family law rules define not only the relationships between members of a family but also between a family and society as a whole. More than any other area of the law, family law reflects the values society shares… Read More

Can I get child support if I never married my child's father?

Yes. Both of a child's biological parents owe that child a duty of financial support. You can work with an experienced family law attorney and/or your state's Child Support Enforcement office to obtain a support order. Don't be surprised if the person you name as the father initially contests paternity and asks for a DNA test. Once paternity has been established a support order will be entered.

How is child support determined?

Each state has child support guidelines in place that are used as the foundation for determining the amount of child support owed. While guidelines vary from state to state, courts setting child support orders will generally follow the amount suggested by the guidelines unless a reason to depart from them exists. Most guidelines factor in at least some of the following:

The needs of the child;
The relative abilities of the parents to pay support; and
The standard of living the child would have had but for the divorce.

Can I terminate visitation if I am not being paid the support I am owed?

No. Tempting as it may be to tie visitation to child support payments, they are separate considerations. Though lack of support can be financially devastating, it really is not in your child's best interests to make time with their other parent contingent on payment and doing so may subject you to legal difficulties if there is a court ordered visitation plan. Similarly, you may not stop paying child support if visitation is denied. If your child support is seriously behind, you should contact an experienced family law attorney or your state or county's child support and enforcement office.

What impact should a child's age have on custody and visitation scheduling?

Development experts agree that children of different ages have different needs regarding visitation scheduling. Experts generally recommend the following schedules, which may need adjustment for parents with either outstanding or limited parenting skills.

Birth to 8 months: 2 or 3 weekly visits of 2 to 3 hours each.

9 to 12 months: 2 or 3 weekly visits of 4 to 8 hours each with one possible overnight weekend visit of 10 hours.

13 months to 3 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24-hour weekly overnight weekend visit.

4 to 5 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24 hour weekly overnight weekend visit and the beginning of vacation (three 2 day visits per year).

6 to 8 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Allowances should be made in the schedule for "homesickness" that allows children to return to primary parent as needed during longer visitation times.

9 to 12 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally.

13 to 17 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Teenager should be consulted for modifications consistent with other activities.

When parents enter into a shared parenting arrangement, the Children's Right Council recommends the following custody schedule.

Under 1 year. Part of each day with parent.
1 to 2 years. Every other day with each parent.
2 to 5 years. No more than two days without seeing a parent.
5 to 9 years. Each parent takes alternate week with off-duty parent getting mid-week visitation.
Over 9. Alternate weeks.

When parents can't reach an agreement on custody what standards do courts use to decide with whom the children should live?

When parents cannot reach an agreement regarding child custody, most courts try to decide custody based upon an analysis of what arrangement is in the best interests of the child. While statutes and standards differ from state to state, a best interests determination is usually reached by reviewing parental wishes, the mental and physical health of the parents, any history of domestic abuse, review of the child's age and attachment to the parent that has been the primary caretaker, and the child's wishes depending upon the age of the child and the motivation for the preference.

What is a fault-based divorce?

A "fault" divorce is one in which one party blames the other for the failure of the marriage by citing a legal wrong. Grounds for fault can include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease.

What is a no-fault divorce?

Traditionally, divorce was granted on the basis of some marital misconduct such as adultery or physical abuse. In these cases, the "guilty" spouse was punished by getting a smaller share of the couple's property or being denied custody of their children while the "innocent" spouse was rewarded for being faithful to the vows of marriage. In a no-fault divorce, however, both parties agree that there is no "fault" involved in the grounds for divorce. In fact, any misconduct is irrelevant to the divorce proceedings. A marriage can be terminated simply because the couple agrees that it is no longer salvageable.

What is a legal divorce?

A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, a divorce will give each person the legal right to marry someone else. It will also legally divide the couple's assets and debts, and determine the care and custody of their children. Each state addresses these issues differently, but there are some relatively uniform standards. Each state does have some type of "no-fault" divorce laws that can significantly simplify the divorce process.

What are the legal effects of marriage?

There are several Federal and state laws that benefit married couples. Some examples include the right to:

File joint income tax returns with the IRS and state taxing authorities

Create a "family partnership" under federal tax laws, which allows you to divide business income among family members (this will often lower the total tax on the income)

Create a marital life estate trust

Receive spouse's and dependents' Social Security, disability, unemployment, veterans', pension and public assistance benefits

Receive a share of your deceased spouse's estate under intestate succession laws

Claim an estate tax marital deduction

Sue a third person for wrongful death of your spouse and loss of consortium

Sue a third person for offenses that interfere with the success of your marriage, such as alienation of affection and criminal conversation (these lawsuits are available in only a few states)

Receive family rates for insurance

Avoid the deportation of a non-citizen spouse

Enter hospital intensive care units, jails and other places where visitors are restricted to immediate family

What is the legal definition of marriage?

Most states define marriage as a civil contract between a man and a woman to become husband and wife. The traditional way to marry is to get a marriage license from a state-authorized official, then participate in a formal civil or religious wedding ceremony.

Can I still have marital relations with my spouse while I am separated and waiting for my divorce?

No, that may void grounds for divorce and your action for divorce can be dismissed by the Court. However, there may be alternatives to a divorce if you and your spouse are still having marital relations. Consult with an attorney for all options available to you.

Can I date while I am separated and waiting for my divorce?

If you have children, you should not date until you are divorced because you are still married to your spouse and the Judge could consider any dating to be improper and not in the children’s best interest. If you do not have children, consult with your attorney before dating. Your attorney may advise you that dating is OK. However, it is never OK to begin a sexual relationship before you are divorced, whether or not you have children. Again, discuss this with your attorney first.

Can I move out of state with my children?

Yes, if you have written permission from your ex-spouse or from the Court. See an attorney to find out what requirements your Judge may have for this written permission.

Can I record my conversations with my spouse and will the Judge allow me to use the recordings in court?

You can record any non-telephone conversations and they will usually be allowed in Court. You can also record telephone conversations that occur in Arkansas, as long as one of the parties consents, and the Judge will also allow the recording to be used in Court, as long as the proper groundwork for the recording is shown. Please consult an attorney before recording any conversations to be sure your recordings will be able to be used in court.

What personal property can I take with me or what debts will I have to pay?

Any property or debts that you had prior to the marriage, or that you inherited during the marriage, or that you were given separately as a gift, is usually considered your personal property or debt. Any other property or debt that was acquired while you were married, regardless of who paid for it or incurred it, is joint marital property or debt and will have to be divided by the Judge if you and your spouse cannot reach an agreement. As in all family law matters, this issue can get very complex. You should consult with an attorney about your individual case.

How is custody of our children settled?

If you and your spouse cannot agree on who will get custody, the Judge will determine custody, based on what is in the best interest of the children. A Temporary Hearing is often set to temporarily settle issues of custody, child support and residence while you and your spouse are in the process of divorcing. The Judge will be trying to preserve the status quo. If you believe your child is in danger, then an Emergency Hearing may be necessary. In Northwest Arkansas, it is difficult to get joint custody, especially if the children are very young. The Judge will usually give primary physical and legal custody to one parent and visitation to the other parent, who will also be ordered to pay child support. The Judge will look at the lifestyle of both parents and the living conditions for the children when deciding which parent will be awarded primary custody. Until the Judge rules on custody, both parents have an equal right to the children. See an attorney as soon as possible to make sure you are doing all you can to get custody!

What should I bring when meeting with my attorney for the first time?

Your attorney will want to see all of your documents from any prior activity in the court, if any. It is also helpful if you bring a written timeline showing all pertinent events, such as date of marriage, date of birth of any children, date of any incidents that you want to use to discredit your spouse, date of separation, etc. Also bring copies of any bills and a list of property.

Can my spouse force me to move out of our home?

If your home was purchased after your marriage, or if both names are on the home, or if both names are on the lease, it is considered the marital home and neither person can force the other person to move out. However, if the home is in your spouse's name only, you can be forced to move from the home within a reasonable time. When possession of the home is an issue, though, your Judge may hold a Temporary Hearing and will order one of you to move out, regardless of whose name is on the home documents. See an attorney to learn what the Judge is likely to do in your case.

Can my spouse call my home, or can I call my spouse, if I have an Order of Protection or a Restraining Order against him/her?

No, both of those orders protect and bar you from any contact with your spouse.

What do I do if my spouse threatens to hurt me?

Go to your local police department or Prosecuting Attorney and ask for an Order of Protection or a Restraining Order. You will have to explain the details of the incident to the Judge, who will usually grant the request for a limited time. The Judge will set a hearing on the matter, usually within about 30 days. Your spouse will be allowed to appear and tell her/his side of the story. We strongly encourage you to see an attorney as soon as you have a hearing date.

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