Frequently Asked Questions

You should hire an attorney in order to avoid many of the potentially emotionally and financially costly pitfalls of the litigation process, including courtroom missteps. In divorce cases, you need an attorney to help protect you and your interests because the attorneys for the other party will not. Don’t miss out on what you would have otherwise been entitled.

First of all, you need to get an experienced child custody attorney to help. The process can be difficult, and the law can be complex. If you are getting a divorce, you will file in the county in which you reside with the child.

If you are unmarried to the other parent but seeking custody, then you must file it in the circuit court in the county where the child resides. Custody is usually based on a child’s residency, and a child has to have been living in the county for six months.

The standard for deciding child custody is that the court calls “the best interest of the child” which includes factors such as who can provide the most stable environment for the child.

Another key factor that the court looks at is if a parent is going to encourage visitation and communication with the other parent, or if they are intentionally interfering with the other parent’s rights to communication and visitation. This can affect a custody decision. The court favors joint custody whenever possible, unless extenuating circumstances exist.

No, you do not have to go to court. A common problem we see is when one parent doesn’t want to make the other parent pay child support. Arkansas caselaw does not allow non-payment of child support because it’s not about the parent; it’s about the child. A parent cannot waive support for a child.

While you can settle child support out of court, you may need to explain any deviation from the child support chart, and it still must be approved by the court.

Sole custody, or full custody, generally means full physical and legal custody of the child. Full custody gives one parent the right to make all of the decisions and to have physical custody of the child the majority of the time.

Physical custody means having the child physically within your control. Legal custody means that you have the right to have input and make decisions as it relates to the minor child.

Joint custody is when both parents can have an input; they both have a say in where the child goes to the doctor, school, extracurriculars, etc. True joint custody is a 50/50 time split, plus each parent gets a say in all of the important matters in the child’s life.

If you are a parent, you have a financial obligation to support your children, and under Arkansas law when there is a divorce, legal separation, or if the parents were never married, this is accomplished through a child support order. The noncustodial parent or parent that has the highest income in joint custody situations, makes regular child support payments to the custodial or other parent in order to meet that financial obligation.

You do! Even if the divorce is not contested, it's in the best interest of both the child and the parents to establish a child support order. If the parties do not initially take the initiative to establish child support, the court can establish child support on its own volition if it sees fit.

If the child's mother has filed and believes you are the father, but do not believe this is the case, you may seek out DNA paternity testing. This can be accomplished through Office of Child Support Enforcement or a paternity action with private testing.

In order for the paternity test to be valid under Arkansas law, it must be performed by a certified lab rather than an at-home test and is typically completed through a cheek swab saliva test.

Arkansas courts use charts as a guideline for determining child support and the noncustodial parent’s income. The guidelines do change over time so it is important to be aware of this as you, your attorney, the child’s other parent, and their attorney discuss how child support and other family law issues will be determined.

If the parties share true joint custody and have similar income levels, the court may not require child support to be paid by either party. However, if there is a large income disparity between the parties, then the court will typically perform an offset of child support. When this happens, the court considers each party’s income for child support purposes, and will offset the higher income by the lower income to determine the appropriate amount of child support. Click here to learn about joint custody.

Although the courts may deviate from child support guidelines on a case by case basis, including parental time sharing and other reasons for deviation, child support is based on income and the needs of the child.

The first thing to do is get a snapshot of all of your assets. You need to know every asset you have prior to and during your marriage. The second thing to do is hire an experienced divorce attorney in Hot Springs, AR who will help you navigate your rights during this difficult process.

In Arkansas, divorce may be files on the grounds of one of the following:

• Adultery
• Impotency
• Conviction of a felony or infamous crime
• Habitual drunkenness
• Cruel and barbarous treatment
• General indignities
• Living separately for 18 continuous months

If it is uncontested and everyone agrees on the division of property and such matters, your divorce may be final in only about six weeks. If it is contested, it will usually require a minimum of six months to a year and a half, sometimes longer, depending on any struggles between the parties.

An uncontested divorce is when the parties have identified all of their assets, all of their debts, and every other issue that could be litigated in a divorce process and have come to an agreement. This can include child custody and child support, if those apply. A contested divorce is when there is something in which the parties disagree that must be decided by the court.

Marital property division is normally split 50/50, but there are exceptions to this. Some examples include:

• In the event of adultery and the person who has committed the act of adultery has been spending marital money on a person who is not their spouse, then the spouse has the right to petition for Inequitable Distribution of the Marital Estate. This is when the non-adulterer asks the court to give them more than half of the marital estate because the adulterer spent marital funds on another person.
• A prenuptial or or postnuptial agreement in which there is already an agreement in place of the division of property.
• Inherited property and premarital property are not included in the division, unless it has been commingled. 

The requirement to go to court depends on your situation. Even in an uncontested divorce, you may still be required to go to court. The only time parties in an uncontested divorce are not required to go to court is when they have been legally separated for 18 months and the judge approves of an Affidavit of Deposition. In most cases, even an uncontested divorce requires a short hearing with the clients and also a witness to verify in front of the court the grounds for divorce and the parties’ residency.

In most cases, the probate process is started by a relative of the deceased who works with a probate attorney to begin a petition to probate. They can do this with or without the presence of a last will and testimony. If it is a small probate, then the relative has to run a three-month notice to notify creditors. If it is a regular probate, then a six-month notice must be run. If a creditor makes a claim, the claim must be resolved before the probate process to distribute inheritance can proceed.

In Arkansas, an executor or executrix (if the person is a female) is appointed by the will. This is the person responsible for carrying out the will and handling the estate. If there is no will, then the person petitioning the court to probate the estate of decedent is typically named as the administrator/administratrix or personal representative of the estate.

If you are unmarried to the other parent but seeking custody, then you must file it in the circuit court in the county where the child resides. Custody is usually based on a child’s residency, and a child has to have been living in the county for six months.

The only way to avoid the probate process is to take part in estate planning before the person is deceased. This will also depend on the assets to be distributed. If the person owns real property, the only way to avoid probate is through a trust that supersedes the probate. Bank accounts, stocks and bonds, and other designated assets can be assigned beneficiary designations to allow them to avoid the probate process as well.

If the deceased does not have a will, an administrator or administratrix, who is normally a close relative, petitions the court first. Traditionally, with an attorney’s help, they can still go through the probate process by following the statutes that guide the division of the person’s assets. You can contact Kelsay Law Firm for help with the probate process in Hot Springs and surrounding areas.

You can choose to probate a will without an attorney's help but this is NOT recommended. There will be costly missteps that a non-attorney will not understand or know. Save yourself money in the long run by contact a professional attorney.