DIVISION OF PROPERTY

The underlying public policy for how to divide property during a divorce is that the division should be equitable, children should be protected, and there should be a finalization to the divorce.  There are two classifications of property:  marital property and non-marital property.  Under Arkansas law, marital property should be split equally (50/50) unless that would be inequitable.  Equal distribution of property refers only to an equal result, not an equal distribution of the same type of property.  Need is a large factor in determining distribution.  The spouse with a larger need will usually take more, even though they have made a lower contribution during the marriage.  Marital fault is not a factor in determining the division of property.  Children are a major factor in determining division of property.

Marital Property:
All property received by the parties during the marriage (i.e., from the date of marriage until the filing of the decree of divorce) unless excepted and classified by law as non-marital property.  It includes the wages of the parties and the increase in value of marital property.  Anything purchased with wages during the marriage is marital property.  The increase in value of non-marital property that is the result of further labor and efforts is marital property.  Pensions earned during the marriage are typically found to be marital property, however, special rules apply in some cases depending on the type of pension.
 
Non-Marital Property:
All property received by the parties prior to the marriage.  It also includes all property acquired by gift if to a specific spouse, bequest, devise, and descent during the marriage.  A wedding ring is a gift to one spouse by the other so is non-marital property.  An inheritance is non-marital property.  Property excluded by a valid agreement (prenuptial agreement) is non-marital property.  The increase in value of non-marital property remains non-marital property.  Property exchanged for non-marital property remains non-marital property.  Income from non-marital property is also non-marital property.  Benefits received from worker's compensation, personal injury claim, or social security is non-marital property if those benefits are for a permanent disability or future medical expenses.
 
Debts:
Debts acquired before the marriage are separate property while debts incurred during the marriage are generally considered marital property.  Debts are allocated in accordance with the allocation of assets.
ARKANSAS CODE OF 1987 ANNOTATED
TITLE 9. FAMILY LAW
SUBTITLE 2. DOMESTIC RELATIONS
CHAPTER 12. DIVORCE AND ANNULMENT
SUBCHAPTER 3. ACTIONS FOR DIVORCE OR ALIMONY
 
Arkansas Code Annotated Section 9-12-315: Division of property.
  (a) At the time a divorce decree is entered:
      (1)(A) All marital property shall be distributed one-half (1/2) to each party unless the court finds such a division to be inequitable. In that event the court shall make some other division that the court deems equitable taking into consideration:
               (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.
           (B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter.
      (2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.
      (3)(A) Every such final order or judgment shall designate the specific real and personal property to which each party is entitled.
           (B) When it appears from the evidence in the case to the satisfaction of the court that the real estate is not susceptible of the division as provided for in this section without great prejudice to the parties interested, the court shall order a sale of the real estate. The sale shall be made by a commissioner to be appointed by the court for that purpose, at public auction to the highest bidder upon the terms and conditions, and at the time and place fixed by the court. The proceeds of every such sale, after deducting the cost and expenses of the sale, including the fee allowed the commissioner by the court for his services, shall be paid into the court and by the court divided among the parties in proportion to their respective rights in the premises.
           (C) The proceedings for enforcing these orders may be by petition of either party specifying the property the other has failed to restore or deliver, upon which the court may proceed to hear and determine the same in a summary manner after ten (10) days' notice to the opposite party. Such order, judgment, or decree shall be a bar to all claims of dower or curtesy in and to any of the lands or personalty then owned or thereafter acquired by either party.
      (4) When stocks, bonds, or other securities issued by a corporation, association, or government entity make up part of the marital property, the court shall designate in its final order or judgment the specific property in securities to which each party is entitled, or after determining the fair market value of the securities, may order and adjudge that the securities be distributed to one (1) party on condition that one-half (1/2) the fair market value of the securities in money or other property be set aside and distributed to the other party in lieu of division and distribution of the securities.
  (b) For the purpose of this section, "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 bequest, or by devise, or by descent;
      (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, bequest, devise, or descent, 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, bequest, devise, or descent, or in exchange therefor.
  (c) 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.
 
Arkansas Code Annotated Section 9-12-316: Property settlements.
In any divorce suit in which a written property settlement involving real property is entered into by the parties and reference is made to the settlement in the divorce decree, a copy of that portion of the property settlement involving real property shall be filed and recorded with the divorce decree.
 
Arkansas Code Annotated Section 9-12-317: Dissolution of estates by the entirety or survivorship.
  (a) Hereafter, when any chancery court in this state renders a final decree of divorce, any estate by the entirety or survivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the court order specifically provides otherwise, and in the division and partition of the property, the parties shall be treated as tenants in common.
  (b) Notwithstanding subsection (a) of this section or any other law to the contrary, when one (1) of the parties to the estate by the entirety has been found guilty or has pleaded guilty or nolo contendere to a felony during the marriage and within three (3) years of filing the complaint for divorce and the other party to the divorce did not benefit from the felony, the chancellor may award the property to the spouse who did not commit the felony or to both parties in any proportion deemed equitable by the chancellor.
  (c)(1) Provided, however, that when a chancery court in this state renders an absolute divorce from the bonds of matrimony or a divorce from bed and board, and the court dissolves estates by the entirety or survivorship in real or personal property under this section, the court may distribute such property as provided in § 9-12-315.
      (2) The court shall set forth its reasons in writing in the decree for making an other than an equal distribution to each party, when all the property is considered together, taking into account the factors enumerated in § 9-12- 315(a)(1).

Last Updated:  April 30, 2001