GROUNDS FOR DIVORCE
 
The courts are only allowed to grant a divorce for the following causes:
1.  Impotency:  It includes both the inability or unwillingness to have sex.
2.  Convicted Felon
3.  Adultery: Party must have sexual intercourse.  Adultery may be proven by circumstantial evidence, but party must prove that the party has an inclination and an opportunity (must prove more than a mere chance).
4.  No-Fault (18-months separation)
5.  Insanity: Party must be shown to be incurable and institutionalized for a period of three (3) years.
6.  General Indignities:  This is the most commonly used grounds. 
7.  Habitual Drunkenness:  Must last for a period of at least one (1) year.
8.  Cruel and Barbarous Treatment:  Origonally, was applied to mean physical violence, but was broadened to mental cruelty which manifests itself physically.  It is judged by the affect on the person and not a reasonable person standard.  The conduct must not be provoked and must be for a duration (i.e., not an isolated incident).

Desertion or abandonment is no longer a ground in Arkansas.  However, if a party is not within the state and has not been heard from or about and is not otherwise known to be living for a period of five years, then the spouse may be presumed dead.  A subsequent marriage would then be valid.  This is not the same as a divorce, and leaves some legal questions open to attack.  See A.C.A. Section 9-11-108.

Defenses to a Divorce Action:
1.  Recrimination:  Both parties are guilty of marital misconduct that would be grounds for divorce so a neither will be granted a divorce.  Most states allow any ground to be offset by any ground; however, Arkansas requires that the marital misconduct must mirror each other.  Also, recrimination is not a defense once a spouse has been forgiven.
2.  Connivance:  The party that is guilty of the marital misconduct does so with the consent of the other spouse.  The consent must be knowing and overt.  Failing to act in response to marital misconduct is not consent.
3.  Condonation:  There is a resumption of marital cohabitation after marital misconduct so that it can be implied that there is forgiveness of the guilty spouse by the innocent spouse.  There must be full knowledge of the marital misconduct.  Also, an act of sex equals forgiveness.
4.  Collusion:    The parties have agreed to manufacture the grounds for a divorce.  This is fraud on the court.

These defenses do not apply to a no-fault (18 month separation) divorce.  However, parties must live in separate residences for the entire 18 month period and must not engage in sexual activity with one another or the time period must begin anew.

 

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 9-12-301: Grounds for divorce.
The chancery court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:
  (1) Where either party, at the time of the contract, was and still is impotent;
  (2) [Repealed].
  (3) Where either party shall be convicted of a felony or other infamous crime;
  (4) Where either party shall be addicted to habitual drunkenness for one (1) year, shall be guilty of such cruel and barbarous treatment as to endanger the life of the other, or shall offer such indignities to the person of the other as shall render his or her condition intolerable;
  (5) Where either party shall have committed adultery subsequent to the marriage;
  (6) Where husband and wife have lived separate and apart from each other for eighteen continuous months, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether the separation was the voluntary act of one party or by the mutual consent of both parties or due to the fault of either party or both parties;
  (7)(A) In all cases where a husband and wife have lived separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of them, the court shall grant a decree of absolute divorce upon the petition of the sane spouse if the proof shows that the insane spouse has been committed to an institution for the care and treatment of the insane for three (3) or more years prior to the filing of the suit, been adjudged to be of unsound mind by a court of competent jurisdiction, and has not been discharged from such adjudication by such court and the proof of insanity is supported by the evidence of two (2) reputable physicians familiar with the mental condition of the spouse, one of whom shall be a regularly practicing physician in the community wherein such spouse resided and, where the insane spouse has been confined in an institution for the care and treatment of the insane, that the proof in the case is supported by the evidence of the superintendent or one of the physicians of the institution wherein the insane spouse has been confined;
       (B) In all decrees granted under this subdivision (7), the court shall require the plaintiff to provide for the care and maintenance of the insane defendant so long as he or she may live. The trial court will retain jurisdiction of the parties and the cause, from term to term, for the purpose of making such further orders as equity may require to enforce the provisions of the decree requiring plaintiff to furnish funds for such care and maintenance;
       (C) Service of process upon an insane spouse shall be had by service of process upon the duly appointed, qualified, and acting guardian of the insane spouse or upon a duly appointed guardian ad litem for the insane spouse, and where the insane spouse is confined in an institution for the care of the insane, upon the superintendent or physician in charge of the institution wherein the insane spouse is at the time confined. However, where the insane spouse is not confined in an institution, service of process upon the duly appointed, qualified, and acting guardian of the insane spouse, or duly appointed guardian ad litem and thereafter personal service or constructive service on an insane defendant by publication of warning order for four (4) weeks shall be sufficient;
  (8) Where either spouse legally obligated to support the other, and having the ability to provide the other with the common necessaries of life, willfully fails to do so.
 
Arkansas Code Annotated Section 9-12-306: Corroboration.
  (a) In uncontested divorce suits, corroboration of plaintiff's grounds for divorce shall not be necessary or required.
  (b) In contested suits, corroboration of the injured party's grounds may be expressly waived in writing by the other spouse.
  (c)(1) This section does not apply to proof as to residence, which must be corroborated, and does not apply to proof of separation and continuity of separation without cohabitation, which must be corroborated.
      (2) In uncontested cases, proof as to residence and proof of separation and continuity of separation without cohabitation may be corroborated by either oral testimony or verified affidavit of persons other than the parties.
 
Arkansas Code Annotated Section 9-12-308: Effect of collusion, consent, or equal guilt of parties.
If it appears to the court that the adultery or other offense complained of has been occasioned by the collusion of the parties or done with an intent to procure a divorce, that the complainant was consenting thereto, or that both parties have been guilty of the adultery or such other offense or injury complained of in the complaint, then no divorce shall be granted or decreed.

Last Updated:  April 28, 2001