PROCEDURES FOR DIVORCE
Depending upon the situation of a person's case, additional
steps may be necessary that are not included here. The purpose of this
section is to give a person a basic idea of the overall procedure and not
necessarily every possible step that might be necessary. Also, some steps
differ slightly from one county to another.
- Uncontested Divorce with a Property Settlement Agreement
- 1. A property settlement agreement setting out the division of all
property, child custody (if any), and child support (if any) is drafted
and signed and notarized by both husband and wife.
- 2. The defendant spouse signs a Waiver of Counsel and Waiver of
Entry of Appearance.
- 3. The defendant spouse signs a property settlement agreement.
- 4. A complaint is drafted, and the complaint, property settlement
agreement, waiver of counsel, and waiver of appearance are all filed at
the courthouse. The court clerk will charge a filing fee at this
time for the opening of a new court file. Currently, the filing fee
is $100.00.
- 5. According to Arkansas Law, a thirty (30) day time period must
lapse between the filing of the complaint and the entry of a Decree of
Divorce.
- 6. After the thirty (30) day time period has lapsed, the plaintiff
spouse will attend a court date as has been set by his or her attorney.
- 7. Court is attended. The plaintiff spouse must be there
along with one witness (commonly referred to as a residency
witness). The witness must testify as to the plaintiff spouse's
residency in Arkansas for 60 days prior to the filing of the divorce and
90 days prior to the filing of the decree. The plaintiff spouse must
testify briefly as to the facts of the case and grounds of the
divorce. Your attorney will make sure that all necessary testimony
is elicited.
- 8. Decree of Divorce is signed by the Judge and filed with the
court clerk.
-
- Uncontested Divorce with Service
- 1. A complaint is drafted and filed at
the courthouse. The court clerk will charge a filing fee at this
time for the opening of a new court file. Currently, the filing fee
is $100.00.
- 2. A summons is issued and served upon the defendant spouse.
If the location of the spouse is unknown, a warning order must be
published.
- 3. The defendant spouse has twenty (20) days [thirty days if
spouse is out-of-state] to file an answer.
- 4. Defendant spouse fails to file an answer.
- 5. According to Arkansas Law, a thirty (30) day time period must
lapse between the filing of the complaint and the entry of a Decree of
Divorce.
- 6. After the thirty (30) day time period has lapsed, the plaintiff
spouse will attend a court date as has been set by his or her attorney.
- 7. Court is attended. The plaintiff spouse must be there
along with one witness (commonly referred to as a residency
witness). The witness must testify as to the plaintiff spouse's
residency in Arkansas for 60 days prior to the filing of the divorce and
90 days prior to the filing of the decree. The plaintiff spouse must
testify briefly as to the facts of the case and grounds of the
divorce. Your attorney will make sure that all necessary testimony
is elicited.
- 8. Decree of Divorce is signed by the Judge and filed with the
court clerk.
-
- Contested Divorce
- 1. A complaint is drafted and filed at
the courthouse. The court clerk will charge a filing fee at this
time for the opening of a new court file. Currently, the filing fee
is $100.00.
- 2. A summons is issued and served upon the defendant spouse.
If the location of the spouse is unknown, a warning order must be
published.
- 3. The defendant spouse has twenty (20) days [thirty days if
spouse is out-of-state] to file an answer.
- 4. Defendant spouse, or his/her attorney, files an answer within
the time period.
- 5. Negotiations are often entered into at this time to determine
if an agreement can be arranged. If an agreement can be arranged,
then a property settlement agreement is drafted, signed and notarized by
both spouses, and approved as to form by both attorneys.
- 6. If negotiations fail or are not attempted, then the following
steps in varying order, dependent upon the situation, are often pursued:
- a. Temporary Hearing: A temporary
hearing can be noticed and held. The purpose of a temporary
hearing is to get the parties in front of a judge to decide certain
issues which cannot or should not wait until the trial date. The
most common use of a temporary hearing is to determine child custody and
child support. A temporary hearing is usually very limited in the
amount of time (usually 1 hour total). The final decision on the
issue decided at a temporary hearing will be at the final hearing.
- b. Requests for Admissions
- c. Interrogatories
- d. Depositions
- e. Requests for Production
- f. Other Discovery Techniques
- 7. A final hearing is scheduled.
- 8. Court hearing. The plaintiff spouse must be there
along with one witness (commonly referred to as a residency
witness). The witness must testify as to the plaintiff spouse's
residency in Arkansas for 60 days prior to the filing of the divorce and
90 days prior to the filing of the decree. The plaintiff spouse must
testify and prove the grounds of the
divorce. Testimony and evidence is presented by each party
concerning the issues in dispute.
- 9. Decree of Divorce. The judge will make a ruling.
Sometimes the ruling will be made on the spot and other times the ruling
will be by a written decision made sometime after the hearing. The
"winning" party usually drafts the Decree of Divorce which is
approved by the other party as to form, mailed to Judge for signature,
and filed for record.
-
- Venue and Jurisdiction
- Venue is the laws determining the proper place for a trial.
- Jurisdiction is whether a specific court has authority to hear a
particular case.
Venue is generally proper in the district where the defendant
resides, where the action arose (i.e., the district which was the marital
domicile in a divorce case), and where defendant is subject to personal
jurisdiction.
There are some special issues concerning children.
A court does not have jurisdiction for child custody or support cases unless
the child(ren) has resided for the past continuous six (6) months in that
district.
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 9-12-303: Venue -- Service of process.
(a) The proceedings shall be in the county
where the complainant resides unless the complainant is a nonresident of the
State of Arkansas and the defendant is a resident of the state, in which case,
the proceedings shall be in the county where the defendant resides, and, in
any event, the process may be directed to any county in the state.
(b) In actions initiated by the Office of Child Support Enforcement of
the Revenue Division of the Department of Finance and Administration or the
Department of Human Services, proceedings may also be commenced in the county
where the defendant resides.
(c) When a spouse initiates an action against the other spouse for an
absolute divorce, divorce from bed and board, or separate maintenance, then
the venue for the initial action shall also be the venue for any of the three
(3) named actions filed by the other spouse, regardless of the residency of
the other spouse.
Arkansas Code Annotated Section
9-12-307: Matters which must be proved.
(a) To obtain a divorce, the plaintiff must
prove, but need not allege, in addition to a legal cause of divorce:
(1) A residence in the state by either the
plaintiff or defendant for sixty (60) days next before the commencement of the
action and a residence in the state for three (3) full months before the final
judgment granting the decree of divorce.
(A) No decree of
divorce, however, shall be granted until at least thirty (30) days have
elapsed from the date of the filing of the complaint.
(B) Where personal service cannot be had upon the defendant or where the
defendant fails to enter his or her appearance in the action, no decree of
divorce shall be granted the plaintiff until the plaintiff has maintained an
actual residence in the State of Arkansas for a period of not less than three
(3) full months.
(2) That the cause of action and cause of
divorce occurred or existed in this state or, if out of the state, that it was
a legal cause of divorce in this state, the laws of this state to govern
exclusively and independently of the laws of any other state as to the cause
of divorce.
(3) That the cause of divorce occurred or
existed within five (5) years next before the commencement of the suit.
(b) The word "residence" as used in subsection (a) of this
section is defined to mean actual presence and upon proof of such, the party
alleging and offering the proof shall be considered domiciled in the state,
and this is declared to be the legislative intent and public policy of the
State of Arkansas.
Arkansas Code Annotated Section
9-12-310: Waiting period before rendition of decree.
Unless the parties shall have lived separate and
apart from each other for a period of twelve (12) months next before the
filing of complaint or unless the defendant is constructively summoned by
publication of warning order, no decree of absolute divorce or of divorce from
bed and board shall be rendered in any action brought on any grounds except
bigamy before the thirtieth day following the day upon which the action for
divorce is commenced. This prohibition is not subject to waiver by either or
both parties to the action for divorce; however, the parties may agree that
the case may be submitted in vacation.
Arkansas Code Annotated Section
9-12-319: Nonresident defendants -- Warning orders -- Entry of decree.
In all divorce actions pending or filed in any of
the chancery courts of this state where a warning order has been published
against the defendant, who is a nonresident of this state, for the time and in
the manner fixed by law and proof of publication has been filed with the clerk
of the chancery court, and where the report or response of the attorney ad
litem appointed for the nonresident has been filed with the clerk of the
court, and no answer or other defense has been filed in the chancery court by
the nonresident defendant, the judge of the chancery court upon submission of
the cause to him in his chambers, or at any other place in his district by the
attorney for the plaintiff, shall hear and enter a decree in the cause, which
shall have the same binding force and effect, both in law and equity, as if
entered in term time in the county where the decree is filed.
Arkansas Code Annotated Section
9-12-320: Proceedings subsequent to decree -- Change of venue.
(a)(1) The court where the final decree of
divorce is rendered shall retain jurisdiction for all matters following the
entry of the decree.
(2)(A) If more than six (6) months subsequent
to the final decree, however, both of the parties to the divorce proceedings
have established a residence in a county of another chancery district within
the state, one (1) or both of the parties may petition the court which granted
the final decree to request that the case be transferred to another county.
(B) The case
shall not be transferred absent a showing that the best interest of the
parties justifies the transfer.
(C) In cases
where children are involved and a justification for transfer of the case has
been made, there shall be an initial presumption for transfer of the case to
the county of residence of the custodial parent.
(b) If the court which granted the final decree agrees to transfer the
case to another chancery district, the court shall enter an order transferring
the case and charging the chancery clerk of the court of original jurisdiction
to transmit forthwith certified copies of all records pertaining to the case.
(c) Subsequent to the transfer to a county in another chancery
district, if the party residing in the county to which the case has been
transferred removes from that county or from the State of Arkansas, the case
shall be transferred back to the county of original jurisdiction or the county
of residence of the party still residing in the State of Arkansas.
(d) The provisions of this section shall not repeal any laws or parts
of laws in effect on March 3, 1975, relating to venue for divorce actions, but
shall be supplemental thereto.
Last Updated: April 28, 2001