What Is Legal Separation
Choosing to part ways can be difficult for any couple, regardless of the time they have been married. While most think that getting divorced is the answer, there is another route they can opt to test waters and decide if they would really like to formally end their marriage. A legal separation is granted to couples to get time apart, wherein they can choose if they want to go forth with the divorce or if there is a chance for reconciliation after a brief separation. Laws differ for legal separation across states and there are only certain states where legal separation is recognized.
Legal separation is recognized in Arkansas. It is also a state which has two different kinds of marriage — covenant and standard. A court’s approval of a legal separation depends on the kind of marriage a couple has. The requirements for legal separation in a covenant marriage are more difficult than for a standard marriage. An “authorized” source like a licensed marriage counselor or a priest, minister or rabbi needs to counsel the couple and the petitioner needs to prove the grounds on which they are seeking a legal separation. The court enforces a fair separation agreement which is signed and agreed to by both spouses in a standard marriage.
Legal Separation in Arkansas
There are two different kinds of marriages in Arkansas, with one being tougher to dissolve than the other. Both covenant and standard marriages recognize divorces but in the former, counseling is required by a priest or rabbi to be allowed to get a divorce. However, legal separations are similarly treated in both divorces. Arkansas has adopted contemporary ways to dissolve marriages, including no-fault divorce wherein neither party chooses to place the blame on the other for the marriage not working and legal separations which allow couples to get a cooling-off period before they choose to formally dissolve their marriage.
A separation agreement is a legally binding, state-recognized document, which formalizes the couple’s separation. Support to the spouse, child custody, property and assets division are all part of the agreement that both parties need to honor and follow. Terms from the separation agreement can get incorporated into the final divorce decree if the couple agrees to go ahead with a divorce.
Legal Separation vs Divorce
Arkansas recognizes divorce as the formal end of a marriage. Each spouse can be independent of the other and be free to enter into another marriage without the state’s interference after a divorce is finalized. In separate support, while the spouses can live apart and go about their lives with minimal intrusion from their spouse, they can’t remarry, as their first marriage hasn’t formally dissolved yet. While separated, each party is allowed to date other people but they have to go ahead with a divorce from their first marriage to get married another time.
In Arkansas, a legal separation usually preludes divorce, but it is not irrevocable. Spouses are free to reconsider and dissolve their separation to continue married life. Spouses are required to live separately in Arkansas before they are eligible to apply for divorce. For this, a separation agreement is signed to protect the rights of each spouse until they get divorced or reconcile.
The agreement can also influence the final terms of the divorce and being a complex legal document, consulting an attorney is advisable. If the couple is unable to reach an agreement, under Arkansas law you can file a complaint with the court asking for a separate maintenance order, which is similar to filing a divorce complaint. This asks the court for deciding on matters like custody, alimony and property division while the parties are not together. The court issued order will include the judge’s rulings like a divorce decree except the marriage is not legally terminated.
Arkansas law also allows for a divorce from bed and board which in many respects is similar to filing for separate maintenance. A court-issued order also terminates the marriage when it issues a decree. The spouses are divorced except they cannot get remarried till a second legal proceeding is filed in court, asking for an “absolute divorce”. Divorce from bed and board is “limited” in that sense and can be opted for purely personal reasons.
In a no-fault divorce, the spouses must live apart for at least 18 months voluntarily. But, if you move apart and cohabitate even for one day with your spouse, the 18-month period starts over. An affidavit from a witness is needed in an uncontested case and a testimony in a contested case before the court when filing for divorce.
Why Choose Legal Separation
Between a legal separation and a divorce, there are multiple factors which make considering the former over the latter in Arkansas:
- Religious or legal reasons are making either or both the spouses wary of opting for a divorce.
- Social Security, housing assistance and other government aids are available to one spouse which their partner can avail as well if their marriage is not dissolved.
- The couple can get health benefits if their marriage is not legally dissolved.
- States provide tax benefits to couples who have been married for a certain period of time.
- Either of the spouses thinks there is a chance to reconcile if they are apart from one another for a defined period of time.
- Negotiating for separate support is less strenuous for one or both the parties instead of a divorce agreement.
- The state you reside in has a residency requirement that you do not meet currently but you still want to live apart till you reach divorce eligibility.
Grounds for Legal Separation
The following terms make you eligible to file for separate support in Arkansas:
- If a spouse is adulterous
- One spouse is a convicted felon serving life or given a death sentence
- A spouse is physically or sexually abused or if the children are abused
- If the couple has gone two years living separately without any reconciliation
- If one spouse is a habitual drunk since at least one year
- If a spouse is endangering his or her life
- If a spouse is committing “indignities” which render married life “intolerable”
Residency Requirements for Legal Separation
To file for and be granted a legal separation in Arkansas, residency conditions are to be met. At least one of the spouses must be a resident of the state for a minimum of 60 days before the filing of the complaint, and three months before finalizing of the legal separation. The complaint has to be filed in the county where the complainant lives. It will take at least 30 days for the separation order to be delivered after the complaint is filed.
The Process of Separate Support in Arkansas
For filing and obtaining a legal separation in Arkansas, these are the steps.
Step 1: Filing for Separate Support
- The judicial separation complaint in a covenant marriage can be filed in a county where either party is residing or the last county where the couple lived together.
- The complaint is filed with the county’s Chancery Court.
- The legal separation agreement is filed along with the separation petition.
- Give complete information about yourself and your spouse and the reasons based on which want to get legally separated.
- If you have children, you might be required by the court to attend parenting classes or mediation before the legal separation is approved.
- Arkansas Administrative Order 10 provides a chart which will allow you to determine the correct amount of support.
Step 2: Issuing Summons to Partner
- A court will issue summons to your partner after you file the separation agreement.
- Rights of your spouse are identified in the summons.
- 30 days are given to the spouse to answer the summons, from the date of serving.
- The summons can be issued via certified mail wherein you must file Affidavit of Service by Mail which states that the complaint was sent via certified mail, return receipt has been requested and proof of the receipt to the affidavit must be attached.
- A police constable or sheriff will serve summons.
- Summons can be served via private servers, which is the fastest way.
- Your spouse will need to file the completed and original summons after they have been served.
Step 3: Court Hearing and Decisions
- Both spouses have to attend hearings before being granted a legal separation.
- Both spouses are asked questions by the judge, who then enters an order of separation.
- If no agreement is reached between the spouses, a hearing is conducted by the court and an order is entered.
- A minimum of 30 days is taken by court to reach its judgment.
- The separation agreement’s terms become implementable by Arkansas courts.
- Protection is given to spouses should their partner try and violate the agreement.
The Cost of Getting Legal Separation
Dividing assets, finances, child care and custody are among the topics that are covered in a separation agreement. It is a complex document which the couple can choose to draft themselves or get a lawyer to vet and draft. A $150 filing fee is to be mandatorily paid to the county clerk. Courts can take only cash or have both cards and cash options, which need to be checked beforehand.
To get information about filing the forms in your city or state, visit the Arkansas Judiciary website or consult a local lawyer. We hope Arkansas’ law on legal separation and its requirements has become clear with this article, and how it differs from getting divorced.
A legal researcher by trade, Steffan serves as the Editor for all of eDivorce’s helpful guides and blog posts. He loves writing about the legal process in an effort to help reduce the complexities of the legal system. Learning from his own personal divorce, he enjoys sharing what has helped him, what didn’t, and how to move on with your life.