Legal separation is a judicial proceeding in which the parties seek court approval of their written separation agreement. The end result is an enforceable document that addresses such issues as division of property, spousal and child support, and visitation. Because Arkansas recognizes two different types of marriage -- "covenant" and "standard" -- your ability to receive court approval of a legal separation will depend on the type of marriage you have. Although you can obtain a legal separation without an attorney, it is necessary that you review the rules before proceeding.
Why Legal Separation?
A legal separation is different from a divorce, in that a couple who obtains a court judgment approving their separation is still legally married. There are several reasons why you might prefer to request a legal separation instead of a divorce. For example, a married couple may wish to maintain certain insurance benefits that would terminate if they were to divorce. Some couples may be forbidden by their religion from divorcing. Alternately, if divorce is your ultimate goal, Arkansas law requires that no divorce may be granted until the parties have lived separate and apart for a full 12 months. In such cases as these, a legal separation might be the best solution for a couple who find themselves unable to live together.
Legal Separation: Covenant Marriage
Arkansas permits you to enter into what is called a "covenant" marriage. In this type of marriage, the couple is required to attend counseling and must affirm on the application for marriage that they understand that marriage is a life-long relationship. Once married, the requirements for obtaining a legal separation are more difficult to meet than they would be for a non-covenant marriage. You are required to seek counseling from an "authorized" source, which may be a licensed marital counselor or a priest, rabbi or minister. In addition, Arkansas requires that legal separation from a covenant marriage requires proof that your spouse has: (a) committed adultery; (b) been convicted of a felony and has been sentenced to death or imprisonment; (c) has committed physical or sexual abuse of the spouse or one of the children of either spouse; (d) is addicted to alcohol for a period in excess of 1 year; (e) is endangering your life or (f) is committing "indignities" to your person so as to render your continued married life intolerable. Legal separation may be granted without any of the foregoing where the parties have lived separate and apart without reconciliation for a period of two years.
Legal Separation: Standard Marriage
Obtaining a legal separation if you have a standard, non-covenant marriage is simpler. A judge may enforce a written separation agreement merely upon application to the court. The document must be in writing and signed by both parties. So long as the terms of your written separation agreement are fair, the court will most likely approve it.
Division of Property and Spousal Support
The first step will be to draft your separation agreement. The agreement is, essentially, a written contract that you will submit to a court for approval. You will need to address division of property and spousal support. Arkansas courts recognize a distinction between marital and nonmarital property. Typically, nonmarital property belongs to you individually and be subject to asset division. This type of property includes those things you owned prior to marriage, property you inherited during marriage, or whatever property you and your spouse agree should be treated as nonmarital. You should determine how you wish to divide the marital property. Arkansas presumes that marital property should be divided evenly, but the court will likely accept whatever reasonable provisions you and your spouse agree upon. The same rule applies to marital debt, as well. Just as with marital property, debt will be split equally between you unless you specify in your separation agreement to do otherwise.
Child Support and Visitation
If you and your spouse have minor children, you need to reach an agreement with regard to where each child will live and how much child support the noncustodial parent will pay. The general rule in Arkansas is that support should be approximately 25% of the noncustodial parent's net income, although the exact amount varies according to the number of children involved. Arkansas Administrative Order 10 provides a chart which will assist you in determining the correct amount of support. Once you have agreed on where the child will live and the amount of support, you will also need to consider visitation with the noncustodial spouse. A typical schedule of visitation is to allow the noncustodial spouse parenting time during weekends and holidays. Most courts try to balance quality time with your children against school and whatever other activities your children normally participate in. Again, a fair, reasoned agreement between you and your spouse will probably be approved by the court.
The key to success here is thoroughness and willingness to negotiate. Arkansas allows you to bypass the negotiation process and have everything decided by a chancery court judge; however, the downside of using the courts instead of negotiating is that you lose all power to make your own decisions. Perhaps just as important is the fact that in a contested proceeding, you and your spouse will each need legal representation, which will subtract substantial legal fees from what might otherwise be your marital assets. Bear in mind that whatever you are unable to resolve in your separation agreement will, ultimately, be dealt with by a judge who can't possibly understand how attached you are to some of the things you accumulated in your marriage but who will be fully empowered to give them to your spouse.