Arkansas

Part of Real World Divorce: web edition | Kindle edition

We had two sources for information about Arkansas law and customs. Timothy Leonard provided the small town/rural perspective from Hamburg, a two-hour drive south of Little Rock. Judson Kidd provided the big city perspective from Little Rock.

Leonard was selected as a "Rising Star" by the Superlawyers folks and has been practicing a mixture of criminal and family law since getting a degree from the University of Arkansas in 2006. See hamiltonhamiltonleonard.com for more biographical information. Kidd has 40 years of experience as a litigator, across a variety of areas of the law. He is a fellow of the American College of Trial Lawyers. Kidd has served as a "special judge" in approximately 10 divorce cases and also on the Arkansas Supreme Court. Kidd also serves on the Supreme Court's child support guidelines committee. See http://www.dkrfirm.com/Attorneys/Judson-C-Kidd.shtml for more biographical information.

Both Leonard and Kidd report that women are the plaintiffs in a majority of Arkansas divorce lawsuits, in a roughly 70/30 ratio. Leonard represents a 50/50 mixture of male/female clients while Kidd represents more women than men. Leonard goes to trial only about twice per year and handles an evidentiary temporary hearing every other month. Kidd handles roughly 24 "final trials" per year and temporary hearings several times each week. Leonard charges $150 per hour to his rural clients; Kidd charges $300 per hour to his urban clients.

Divorce litigation is streamlined in Arkansas compared to other states. Both Leonard and Kidd report that a case will go to trial within 9 months of being filed and, even with all issues contested, be disposed of with legal fees that don't exceed $20,000 per side. On the other hand, Kidd says "people are very wise to settle their case when they can." Based on his experience as a judge he notes that "People throw their whole life on your desk over an 8-hour period and you're expected to be a genius and make the right decision every time."

Plaintiffs who want to further streamline their case will file a domestic abuse complaint in order to get immediate possession of the house and the kids. Regarding divorce plaintiffs who work the abuse angle Kidd says that "Some of them do over-egg the pudding and really stretch the truth in their affidavits. In most cases dad is going to get booted out of the house anyway at the temporary order hearing but they don't want to wait that long." Leonard says that he regularly sees individuals filing complaints: "There are forms at the courthouse where a plaintiff can do it herself without a lawyer. She can just hand-write in 'He is abusing me and I am afraid'. This makes it a crime for him to be around the children or the mother." In a state where duck hunting is almost a religion, Kidd says that a principal issue with the order of protection is "you can't carry a gun anymore."

What does working the abuse angle look like on the ground? "I had one where the wife slapped herself in the face right before the police showed up," said Kidd. "The police took my guy to jail after seeing the mark on her face. We learned the truth because the parties reconciled and she said 'I knew that I could get you out of the house and I was mad because you were having an affair with the nurse.'"

How do temporary hearings work when nobody is claiming to be abused? First of all, unlike some other states, temporary hearings are evidentiary, with witnesses and the potential for cross-examination. The outcome seems to be pretty standard, however, regardless of what the witnesses say. "I have had maybe five cases in 40 years where the judge left both parents in the house," says Kidd. "Otherwise the mother gets the house and the kids and he is moved out." Do custody decisions made in one or two hours end up becoming permanent? "If you win temporary custody that sets the stage for the final trial," says Kidd. "The other side usually don't contest it if you've won it. Sometime you can get a read that the judge is still considering custody to the dad or joint custody. But generally it is the mom who wins at the temporary hearing. Our law presumes equal parenting, but the younger the kid the better chance mom has. Dad is supposed to be on an equal playing field but he is not."

Leonard confirmed Kidd's perspective: "If you win a temporary hearing you're pretty much in the catbird seat as far as negotiation is concerned. You've got the house and the kids."

Child support in Arkansas ends at age 18 if the child has graduated from high school or at the end of the school year for a 19-year-old who is still in high school. Courts will enforce an agreement by parents regarding the payment of college expenses but cannot order a parent to pay for college. Calculating child support in Arkansas is straightforward. The state publishes a chart up to $5,000 per month in net (after-tax) income and applies a simple percentage to income above $5,000 per month. From the Supreme Court's "Order 10":

III. b. Income Which Exceeds Chart. When the payor's income exceeds that shown on the chart, use the following percentages of the payor's weekly, biweekly, semimonthly or monthly income as defined in SECTION II to set and establish a sum certain dollar amount of support:

One dependent: 15%

Two dependents: 21%

Three dependents: 25%

Four dependents: 28%

Five dependents: 30%

Six dependents: 32%

Does that mean child support in Arkansas is limited only by a defendant's income? "Right now there is theoretically no cap," says Kidd. "I am getting ready to challenge that [with the appeals court]. My client is paying $27,500 per month for a three-year-old child. Everything is already paid for, including the house and car, plus she is going to walk out of the marriage with several million in assets that will be paying interest."

Leonard said that a court could, but did not have to, issue a separate order for daycare expenses on top of the guideline child support amount. Kidd told us that it would be unusual for a judge to deviate above the guidelines to pay for daycare but that it could be done. Leonard said that health insurance is routinely ordered separately and additionally.

Child support does not depend on the custodial parent's income. "I had a case with a father plumber making $40,000 per year paying a doctor who earns $750,000 per year just the same amount as if she were not working," says Kidd. "I'm on the child support committee with the Supreme Court. We have a meeting coming up in late August [2014] and our committee is studying very hard the shared income approach to child support. We're also headed toward a cap on child support but the first step will be shared income." (The more conventional term for making child support dependent on the relative incomes of the parents is "income shares"; see the Massachusetts chapter for an analysis of how the practical effect of "income shares" in a typical state is quite small.)

Is there a practical right of appeal in Arkansas? "The abuse of discretion standard is very high," says Leonard. "You might win an appeal on an evidentiary issue or a procedural issue. But most likely it will be reversed and remanded you're back to the same judge who will give you the same result via a slightly different path."

A "walk-away" prenuptial agreement, in which neither party can profit from property division and alimony via a marriage, is valid in Arkansas, which follows the Uniform Premarital Agreement Act.

State background

The average hourly wage in Arkansas is $17.72 per hour. A person who goes to college at the Arkansas State University will spend approximately $61,320 over four years to earn a bachelor's degree. Among residents surveyed by the Census Bureau in 2014, the median income for a 22-36-year-old college-educated woman working full time was $42,000 per year in Arkansas or $37,095 after taxes. For a similar man it was $57,000 per year or $41,330 after taxes. Arkansas collects 10.1 percent of residents' income in order to fund state and local government, somewhat higher than the national average of 9.9 percent (source: Tax Foundation).

The average annual cost of child care is $5,437 for an infant, $4,695 for a four-year-old, and $6,259 for a school-age child. Thus the total cost of child care from age 0 through 12 is $38,103 in commercial settings or $34,028 in a family care setting.

The male college graduate will have an after-tax spending power of $517,300 after 14 years of working (14 years of income minus taxes and the cost of college). Considering the USDA-estimated cost of a child, he would be financially better off collecting child support than working when that support is 3,145 per month or more. As the top of the chart, for $5,000 per month in net income, is $691 per month in transfer payments, he will need to find an additional $2,454 per month in child support revenue. This can be obtained from a payor who has an additional $16,360 in monthly net income, a total of $21,360 per month in net income or $256,320 per year. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $1,950 per month.

The female college graduate will have an after-tax spending power of $458,010 over the same time period. She would be better off collecting child support when it exceeds $2,870 per month, an amount that can be obtained from a father earning $234,320 per year after taxes. If she is suing two fathers, however, each needs an after-tax income of only $149,000 per year for her to have a higher personal spending power (after deducting for the children's expenses) compared to the college/work/no-kids case.

The Scenarios

Scenario 1: Professional Wife and Slacker Husband

A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.

How common is this fact pattern? Leonard says "It is not very often one sees a case with a higher-earning mother in rural southeast Arkansas." Kidd says this is a common part of his practice, especially with medical doctors, in Little Rock.

Leonard explained that what other states called "legal custody" is almost sure to be joint in this and the rest of our scenarios: "We used to call it 'feel good custody' where the child was primarily with the mother because the father can pound his chest and say he had joint custody when he didn't. This is the typical outcome of an Arkansas case. It is rare to exclude a non-custodial parent from school and medical records."

How about the day-to-day schedule? "Arkansas previously disfavored joint [physical] custody by statute," Leonard explained. "We don't anymore but the standard remains sole [physical] custody with standard visitation." What's standard? "Every other weekend from Friday afternoon to Sunday afternoon, split holidays, and then six weeks during the summer with the non-custodial parent. The summer weeks, at his option, could be split up into two three-week periods." Is that in a statute as in Texas? "No," said Leonard, "but it is customary with judges. If you go 100 miles north their standard visitation may not be identical but it will be close." Which parent wins this one? "She will prevail unless she is working 16-hour days."

Kidd's answer was consistent with Leonard's: "Mom's probably going to win custody if she can prove that the father is kind of a lazy stay-at-home dad. Assuming that the mom does child-rearing tasks at night, Mom has the upper hand. Dad's gonna get visitation every other weekend from Friday at 6 until Sunday at 6. On the off-weeks there will be one night but maybe not an overnight. At least 5-8 pm. The child will alternate holidays." How about the summer schedule? "Some judges would give dad every other week in the summer," said Kidd. "Other judges would be more restrictive just because the child is a year old."

As the child gets older might the parenting time schedule change? "That would require a 'material change in circumstances'," said Kidd. "And the child getting older is not an argument." At what age might the child's own preferences be taken into account regarding the schedule? "By statute it is 14 or 15," says Leonard, "but a child can always testify and it is never binding on the court."

How about child support? Kidd predicted that a judge would impute approximately $35,000 per year in income to the husband and he would therefore pay about $445 per month in child support ($90,780 over the 17 years until this child turns 18). Suppose that he could turn things around and become the custodial parent? The doctor would pay him approximately $2,305 per month. Thus each parent has a $561,092 financial incentive to fight for custody.

What if the parents could somehow agree to 50/50 custody? "There is no statutory way to calculate child support in that situation," says Leonard, "because we just now are becoming okay with joint custody. Different jurisdictions calculate child support differently when there is joint custody." Leonard says that in some jurisdictions a Massachusetts-style system is used in which child support is calculated in each direction and then subtracted to get to a net payment from one parent to the other.

How about property division? "Arkansas is a 50/50 state for property acquired during marriage," said Leonard. Alimony? "He could get six months of rehabilitative alimony," responded Kidd, a prediction with which Leonard concurred.

Can the low-income defendant get the high-income plaintiff to pay his fees? "Possibly because of great disparity in income," says Kidd. "It is discretionary with the judge. He is at fault by having the affair. This is not supposed to be a factor but I see it hurting him."

Scenario 2: 14-year marriage of equals

A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year.  They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.

Leonard (rural): "The conflict means they won't get joint or 50/50 custody in my county and most likely nowhere in Arkansas. The marital home will be awarded to the person granted custody but home equity must be balanced by other assets." Which person will get the house and the kids then? "Practically you want to say that it doesn't matter but historically there is a bias in favor of moms. Plus he has moved out. He will have standard visitation every other weekend. He will pay $13,812 per year to the mother."

Kidd (urban): "One big factor our judges would look at is the ability of these parents to work together before awarding joint custody. Mom will get custody based on these facts. Dad will pay child support of 28% of his net take-home. Probably standard visitation: Friday to Sunday evening, but the judge may tack on Sunday night; half of the summer; alternating legal holidays."

What if the 13-year-old really wants to live with the other parent? "It is disfavored to split up siblings in the case law but it does happen," says Leonard.

What does Leonard think is better for the kids, a 50/50 arrangement or the Arkansas standard visitation of every other weekend? "If the parents can truly and honestly get along and they live in the same school district then my personal opinion is 50/50 or close to it is better for the children. But you're talking about finding unicorns. This situation doesn't come along very often."

[Note that the Arkansas approach of denying joint physical custody based on the existence of conflict is at variance with conclusions by research psychologists. "Shared Residential Custody: Review of the Research (Part II of II)", Linda Nielsen, in American Journal of Family Law, 2013, vol. 27, 123-137: "parents do not have to be exceptionally cooperative, without conflict, wealthy, and well educated or mutually enthusiastic about sharing the residential parenting in order for the children to benefit." This conclusion is based on the professor's analysis of 24 studies of shared parenting.]

Scenario 3: 10-year marriage with kids 2 and 5

An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.

Leonard predicted a slam-dunk custody victory for the mother with "standard visitation" for the father. "During litigation temporary support would be 20 percent of income. After a trial alimony would be equivalent to two dependents," said Leonard. "Look at whatever the child support would be for these two children and then she would be awarded that same amount again as alimony." How long would it last? "Until she gets married or he petitions the court to say that it should end," said Leonard. "After the kids are out of school he would have a good chance of getting the alimony terminated on the grounds that there had been a 'change in material circumstances'."

[Child support from the chart and then extrapolating with a 21 percent multiplier on income over $5,000 per month is about $33,423.]

Kidd's answer from Little Rock was the same on custody and child support but different on alimony. Kidd noted "She's only 28 years old. That goes against her on alimony. She'll probably get 3-5 years of alimony. Ten years is not a short-term marriage but it is by no means long-term. The court recommends 20 percent of net income for an unemployed spouse. That's where everybody starts. [$55,000 per year of alimony in this case] But it will depend on her expenses and other factors."

Kidd said that "She could get an unequal property division because of the kids and the judge has the authority to give her the house, but it is unlikely that the judge would deviate from 50/50."

Scenario 4: 1.75-year marriage with 8-month-old child

A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.

Both Leonard and Kidd predicted a custody victory for the mother. Would the visitation be standard with such a young child? "Yes and no," said Leonard. "Standard summer visitation [of 6 weeks] usually starts at age 4 or 5. For an initial schedule I would try to get one night per week every week for necessary bonding with the father. Courts have wide discretion and they are being more open than historically to more time with the non-custodial parent, for example, one night per week in addition to every other weekend."

Kidd said that the schedule will be dependent on the facts, e.g., how long has the child historically stayed alone with the father, and with the judge: "We've got seven judges here. Some of the female judges are more protective of children at younger ages and would be less willing to allow overnights with the father." When does the protection end? "There is no question by the time the child is two visitation will be standard from every judge." What does Kidd think is actually best for a child? "I'm pro-parenting so I would give the dad a pretty even shot to start with," he replied. "On the other hand I had a paternity case where the father lived in New York and the mother in Little Rock. I argued hard to keep the one-year-old child here for any visits. But the judge allowed the child to fly to New York accompanied by a grandparent for 8 days over Christmas and weekly summer visitation. It has worked out great. The judge made the right decision." Did the mother agree that this was the right decision? "Mom was devastated and upset."

[Published psychology research seems to support the judge. "Parenting Plans for Infants, Toddlers, and Preschoolers Research and Issues" by Linda Nielsen (2014), Journal of Divorce & Remarriage, 55:4, 315-333: "In the debate over parenting plans for infants and toddlers, a central question is whether these very young children should spend overnight time away from their mothers in their fathers’ care. This article summarizes and critiques the 11 empirical studies that have addressed this question. Overall, overnighting was not associated with negative outcomes for infants and toddlers and was associated with positive outcomes for preschoolers."]

The mother can get $23,740 per year in child support based on the doctor's salary ($403,573 over 17 years).

How can the mother tap into the $2 million in pre-marital savings? "Only through actual income on the money and the child support formula," says Leonard. "One could argue to have a judge impute additional income to the $2 million," said Kidd. In a low-inflation environment, the $2 million might have a nominal yield of 3 percent, resulting in an additional $6750 per year for the mother (assuming a 25 percent tax rate on the dividends). In a high-inflation environment, the $2 million, though yielding the same on an inflation-adjusted basis, might yield 10 percent nominally and thus generate an extra $22,500 in child support revenue for the mother.

Scenario 5: 18 year old free spirit/music lover; no marriage

An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.

Leonard says "I do these from time to time, but the mother can go to the Office of Child Support enforcement and have them do it for her. If she is receiving any type of public benefits then the Office of Child Support enforcement will try to recoup them." Can she collect retroactive support? "It goes back to the date of the child's birth. She can probably can get medical expenses and attorney's fees as well," Leonard notes.

Kidd says "I may do 10 of these a year. They are more common than 10 years ago and much more common than 20 years ago."

Both Leonard and Kidd predicted custody to the mother and standard visitation for the father. The mother can get $23,740 per year in child support based on the doctor's salary ($451,060 over 19 years, assuming that the child is also also a free spirit and graduates late from high school).

Due to the fact that the custodial parent's income is not considered when calculating child support, if the mother were to marry a high-income partner it would not affect her child support entitlement.

Removal/Relocation

"Arkansas favors relocation without court approval if the court-ordered visitation can still be accomplished, says Leonard. How far could she go? "She could do a move that was a four-hour drive away without approval." [I.e., she could impose 16 hours of round-trip driving on the father every other weekend, during 8 hours of which he would be accompanied by the child] "Practically speaking if you're going to move across the country, you'll have to make some accommodation," cautions Leonard. "A custodial mother who wants to move to New York to be with a new husband and to take a higher-paying job could get approval but if she can afford the airfare and he can't, she might be ordered to pay for the airline tickets to enable visitation." Leonard noted that legislation has been proposed to change the law so that relocation must be in the best interest of the child but "it died in committee."

Kidd concurred with Leonard's perspective. "It is pretty easy to relocate. Right now it is presumed advantageous for the custodial parent to move. Our Supreme Court has gone back and forth on various factors but the current state of the law makes it relatively easy. She needs to have a legitimate reason to move." What would qualify as legitimate? "A new husband or a new job if she is going to a town with schools and arts opportunities comparable to her current town in Arkansas."

Kidd said that there was "no magic answer" to the question of removal. It was a balancing of the mother's interest against the harm done to the children and father. "It is awful for the father and the children. I just negotiated one last week where the mother moved to California. We arranged for 8 weeks in the summer with the father, but it cuts out his day-to-day involvement. The sad thing is that in Arkansas most parents don't have the resources to travel back and forth. Dad gets to see the kids in the summer and that's it because he can't afford to access his visitation during the year. Skype has helped. That's a minute point but at least it is a way to interact with children in some fashion."

Quirks

As in most other states, because existing child support orders are deducted from income that can be tapped for additional child support orders, different children from the same parent have different cash values. The first person to sue a parent will get the most money and each successive plaintiff will get less.

Also, as in most other states, a child support plaintiff has a greater claim to a parent's income and a superior right to financial security than do the children of a marriage or the legal spouse. Kidd handled a case in which a doctor was married with children but also had two children from an affair with a nurse ("When I see young doctors working with attractive nurses I think that's just like hunting in a baited field.") "The starting point is that the money for the illegitimate children comes out of the pot before the wife and legitimate kids are supported. That's the way it is supposed to work under the law."

Mediation in Arkansas

Kidd does a lot of mediation work and says that people for whom obtaining cash is the #1 priority will choose litigation and people for whom the welfare of their children is paramount will choose mediation. In addition "Professionals choose mediation because they are less inclined to air their dirty laundry in public. The doctor who was married with illegitimate kids via the nurse did not want to go into court and spread that all over the public record."

What does a cash-oriented plaintiff look like? "Older father, younger mother," says Kidd. "She gets pregnant. She has a child. She bails out after three years."

Changes on the Horizon

Leonard expects to see wider use of attorneys ad litem "if funding can be procured for it. Parents can't afford two attorneys." He expects that joint custody or a variant of joint custody will "become more likely though not necessarily customary" and does not expect a joint custody presumption statute.

Kidd sees the income shares approach being adopted for child support in Arkansas and believes that will be an improvement due to parents perceiving the system as more fair. He also advocates capping child support, as has been done in neighboring Texas. "It will help get cases settled, which is in the best interests of children. If mom knows that she can get $27,500 per month in child support she will go to trial." Kidd thinks that a shared custody presumption may be coming due to the fact that judges are not implementing the current law that says it is "presumed advantageous" except in very rare cases.

Summary

Arkansas has much more predictable outcomes than many other states. Absent exceptional circumstances the mother will get custody. Child support can be calculated in minutes by a consumer, attorney, or judge and all will come up with roughly the same number. The likely court-ordered schedule for the children to visit with their father is readily predictable as well. Perhaps as a consequence of this predictability litigation costs are much lower than in many other states.

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