For those who are thinking of ending their marriage, there is a lot to know and a lot to consider.
The first thing you should be thinking about is what you want your post-divorce life to look like.
As Arkansas divorce lawyers, we often tell our clients to picture what they hope their life will look like after divorcing their current spouse. Just because one dream didn’t turn out the way you expected doesn’t mean you have to give up on all your dreams.
Yes, divorce is an ending and a major change in your life. But it’s also a new beginning. First, however, you have to untie the knot and that could take up the next year of your life.
Fault vs. No-Fault Divorce
While all states now allow no-fault divorces, Arkansas also allows residents to file divorce on fault-based grounds. It is important to understand the difference. When filing a fault-based divorce, you basically blame your spouse for the breakdown of the marriage.
By contrast, a no-fault divorce cites “irreconcilable differences” as the cause of the breakdown of the marriage. While the blame is laid at the feet of neither spouse, that doesn’t mean that a no-fault divorce is necessarily an uncontested divorce.
Grounds for a Fault-Based Divorce
In Arkansas, you must identify specific grounds for the breakdown of the marriage. These include:
- Cruelty (physical, emotional, sexual, or psychological abuse),
- Abandonment (if one spouse leaves the other spouse for an extended period of time),
- Adultery or infidelity,
- Impotence that was not disclosed before the marriage took place,
- Conviction of a felony or an extended period of imprisonment,
- Or drug or alcohol abuse.
A spouse who files for a fault-based divorce on one of these grounds will need to be prepared to prove the allegation in court.
Contested vs. Uncontested Divorce
Fault and no-fault divorces only specify the grounds on which the divorce is initiated. While there are some key differences, a no-fault divorce can still be a contested divorce. In other words, the divorce is adversarial. The two spouses have interests that directly conflict with one another. While all fault-based divorces are contested, a good portion of no-fault divorces are as well.
Three Different Ways to Approach a Divorce
Nowadays, there are three different ways for couples to dissolve their marriage. Litigation and lawsuits are only one of them. There is also collaborative divorce and mediation.
Regardless of whether or not you pursue fault grounds or no-fault grounds, there are several key issues that need to be resolved by you, your spouse, and your attorneys.
For instance, how will the assets be divided? What will custody of the children look like? Will there be spousal support or alimony? Will there be child support?
These are the kinds of questions that must be answered by the time your divorce is finalized. While there are different ways of getting to that finish line, you will not have gotten to the finish line until these issues have been decided.
How Does a Litigation Divorce Work?
Litigation is considered the most adversarial form of divorce. Each spouse has their own attorney who advocates on his or her behalf.
Litigation can become very contentious. Each spouse may have very different ideas about what they want post-divorce. Each spouse may feel that they’re entitled to certain property that was built during their marriage. Each spouse may feel that they are themselves better suited to handle the children’s affairs. Each spouse may resent having to pay alimony or child support.
Because there is little or no common ground between the spouses, the court must decide for them what the best course of action is.
What are the Advantages of Litigation?
In a litigation divorce, you have an Arkansas divorce attorney who is advocating for your interests.
In some cases, litigation is the only form of divorce that makes sense for the couple to pursue. If one spouse does pursue fault-based grounds then it’s a sure thing that the other spouse will contest the divorce.
What are the Disadvantages of Litigation?
Litigation costs more money than other kinds of divorces. It takes longer too. It has the capacity to upset your children and the transition into post-divorce life won’t happen quickly. You will need to be conscientious about showing up to court.
Lastly, your finances and asset holdings will be a matter of public record. There are some ways around this, but when property gets divided through a probate process, those records become public knowledge.
Mediation is the least adversarial type of divorce. Each spouse may or may not have their own attorney. The process is run by a mediator, usually a divorce lawyer, who has experience helping couples resolve their divorce issues. The mediator will help the couple find common ground but may not give any legal advice. Those who go through mediation typically have an attorney who will advise them while not necessarily advocating for their interests.
The process is designed to be quick and painless. While it works for many couples, it won’t make sense for every divorce to be resolved in mediation. The major issue is that the couple must be able to agree on all of the post-divorce issues. This includes deciding primary custody, creating a visitation schedule, dividing assets, and deciding on child support and alimony.
If the mediation process breaks down, the couple has the option of enlisting the aid of an arbitrator. Their other option is to scrap the arbitration process altogether and go into litigation. The benefit of hiring an arbitrator is that the couple gets to choose who the arbitrator is and define the scope of the arbitrator’s decision making.
Advantages of a Mediated Divorce
Mediation tends to be the cheapest and fastest way to dissolve a marriage.
The former spouses get to keep all important decisions in-house and even if certain disputes go into arbitration, they will not be a matter of public record. However, if there is a dispute revolving around child custody, that decision will not be managed in arbitration.
Disadvantages of Mediation
Mediation presupposes that both spouses are willing to work together toward an amicable dissolution of their marriage. It will not be appropriate if they can’t. It will also not be appropriate if one spouse had all the decision-making power in the marriage.
If one spouse is the primary breadwinner and holds most of the financial assets, the other spouse might want to think twice about mediation.
Lastly, if there is any history of abuse at all between the spouses, mediation is not appropriate.
The last option on the table is collaborative divorce. Collaborative divorces are not quite litigation and not quite mediation. It exists in the happy medium to fill the void left by the two extremes. In collaborative divorces, the main idea is to solve the problems of divorce in the most amicable way possible while still acknowledging that the two spouses may not see eye to eye on some issues.
In a collaborative divorce, each spouse has their own attorney, but the attorney’s purpose is not to advocate so much as it is to advise. In addition to lawyers, there are financial planners, child psychologists, and other experts involved in the process of ratifying a lasting agreement.
Each individual involved in the collaborative divorce signs an agreement to move forward with the collaborative process. If that process breaks down or one or the other spouse threatens litigation, it breaks the contract and the divorce goes into litigation.
It is an option for couples who don’t want the divorce process to be fully adversarial but don’t want think they’re close enough on key issues to employ mediation.
Legal Separation in Arkansas
Sometimes couples are not ready to get divorced but it feels like there are too many problems in the marriage to allow it to continue as is. They choose to separate. In other words, they live separately. During this separation and regardless of whether or not they later divorce or get back together, agreements need to be reached concerning custody, visitation, and financial issues.
An Arkansas divorce attorney can help you draft a legal separation contract that is enforceable under the law.
Arkansas is one of three states that have what is called “covenant marriages”.
Dissolving a covenant marriage is a little trickier than dissolving a non-covenant marriage. Most folks have never heard of a covenant marriage and aren’t even sure if they’re in one. That is because it is a very old-fashioned throwback to an older era. Mike Huckabee made covenant marriages more popular when he announced that he and his wife planned on converting their marriage into a covenant marriage on Valentines Day.
Spouses will need to accept that their options for dissolving a covenant marriage are more limited than those in non-covenant marriages. Nonetheless, covenant marriages remain rare.
Hire a Lawyer for a Divorce
The Arkansas divorce lawyers at Harris Law Firm have successfully helped numerous couples dissolve their marriages in non-adversarial ways and represented spouses in litigated divorces. If you need representation for your divorce, give us a call or talk to us online.