USA – ARKANSAS Law and Practice Contributed by: Kathleen Egan, Aaron Bundy and Grace Ann Green, Bundy
should be divided in half between the parties unless a 50/50 division would be inequitable. Factors for mak ‑ ing an unequal division of property include: • length of the marriage; • age, health and station in life of the parties; • occupation of the parties; • amount and sources of income; • vocational skills; • employability; • estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; • contribution of each party in the acquisition, pres ‑ ervation or appreciation of marital property, includ ‑ ing services as a homemaker; and • the federal income tax consequences of the court’s division of property. When marital property is divided in a way that is not 50/50, the court must state the reasons for not divid ‑ ing the marital property equally between the parties. Assets are generally valued as of the date of trial. The statute concerning property division excludes certain property from division, including the increase in value of property acquired prior to marriage. Histori ‑ cally, Arkansas trial courts used a judicially created analysis to assess the value of in-marriage apprecia ‑ tion of premarital property when the increase in value was due to the efforts of one of the spouses. However, in 2016, the Arkansas Supreme Court determined that the analysis conflicted with the plain language of the statute and overturned decades of precedent. 2.4 Spousal Maintenance Spousal maintenance is a need-based concept in Arkansas. The party requesting support needs to provide evidence that support is required to sustain their needs. Judges can also consider many factors in awarding alimony or support to either spouse, includ ‑ ing (but not limited to): • one spouse’s needs versus the other spouse’s abil ‑ ity to pay; • length of the marriage; • each spouse’s contribution to the marriage, both financial and otherwise; and
• marital and individual debts. Courts may grant temporary alimony during the pen ‑ dency of an action if requested by either party, but it is not required. The court will typically decide the amount and length of temporary support, taking into account more pressing matters such as living costs and court costs. Arkansas also recognises rehabilitative alimony, which is a time-barred award of alimony to assist one spouse for a certain period of time following the divorce. This is in contrast with traditional or permanent alimony, which is more open-ended and typically only ends upon the death of either party or remarriage of the party receiving support. 2.5 Prenuptial and Postnuptial Agreements The Arkansas Premarital Agreement Act is codified at Sections 9-11-401 to 9-11-413 of the Arkansas Code Annotated. Premarital agreements are enforceable by the courts, except if the party against whom enforce ‑ ment is sought proves that: • the party did not execute the agreement voluntar ‑ ily; or • the agreement was unconscionable and – before executing the agreement – the party seeking to avoid enforcement: (a) was not provided a fair and reasonable disclo ‑ sure of the property or financial obligations of the other party; (b) did not voluntarily and expressly waive after consulting with legal counsel, in writing, any right to disclosure of the property or financial obligations of the other party beyond the dis ‑ closure provided; and (c) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party. For premarital agreements to be considered valid, it must be a written agreement, signed and acknowl ‑ edged by both parties. The parties must also acknowl ‑ edge that they have consulted with their respective attorneys, have read and understood the agreement, and are freely entering the agreement without coer ‑ cion or undue influence.
283 CHAMBERS.COM
Powered by FlippingBook