Laws governing division of marital property in divorce vary from state to state. Arkansas law requires an equitable, or fair, division. The law also states that equitable usually means equal—but a judge who believes that a precisely equal division would be unfair can divide the property in a different proportion after considering the following factors:
- length of the marriage
- each party's age, health, and station in life
- each party's occupation
- each party's sources of income, and how much income is available
- vocational skills
- estate, liabilities, and needs of each spouse and each spouse’s opportunity for further acquisition of capital assets and income
- each spouse’s contributions to the acquisition, preservation, or appreciation of marital property, including services as a homemaker, and
- federal income tax consequences of the property division.
Some couples are able to agree on how to divide everything on their own, while others seek the help of attorneys or a mediator to negotiate a settlement. Couples who don’t manage to resolve property issues outside of court will end up going to court to ask for a decision from an arbitrator or a judge.
Marital Property and Separate Property
The first step in the division process is deciding whether property is marital or separate. Marital property includes most assets and debts a couple acquires during marriage. Property is separate if a spouse owned it before marriage or acquired it during marriage by gift or inheritance. Separate property also includes:
- items purchased with or exchanged for separate property
- earnings on separate property
- any increase in value of separate property, and
- disability benefits or funds one spouse receives from a personal injury claim, if they are for permanent disability or future medical expenses.
A spouse can convert separate property into marital property by changing title from individual to joint ownership, in which case a court would presume that the spouse intended to make a "gift" of the property to the marriage. Marital and separate property can also be mixed together—sometimes called "commingling." Some couples combine their separate assets intentionally; others do so simply by being careless. A premarital bank account belonging to one spouse can become marital property if the other spouse makes deposits to it; a house owned by one spouse alone can become marital property if both spouses pay the mortgage and other expenses.
If the spouses aren’t able to decide what belongs to whom, the judge will have to decide whether any or all of the commingled property was a gift to the marriage or whether the original owner should be reimbursed in whole or in part. These situations can be very complicated and may require the assistance of an attorney or a forensic accountant.
Separate property is not ordinarily subject to division in divorce, but a judge in Arkansas does have the option of including it if it seems unfair not to after applying the factors listed above. A judge who divides marital property in any way other than equally, or who includes separate property in the division, must explain the reasons for doing so in the court record.
After determining which property is marital property, the couple, or the court, will assign a monetary value to each item. Couples who need help determining values can hire professional appraisers. Some financial assets, such as retirement accounts, can be very difficult to evaluate and may require the assistance of a financial professional, such as a C.P.A., or an actuary.
Dividing the Property
Spouses can divide assets by assigning certain items to each spouse, possibly with an equalizing payment if one spouse gets more than the other, or by selling property and dividing the proceeds. They can also agree to continue to own property together—this isn’t a very attractive option for many people, as it requires a continued relationship, but some couples agree to keep the family home until children are out of school. Others may keep investment property in hopes it will increase in value.
The couple must also assign all debt accrued during the marriage, including mortgages, car loans, and credit card debts, to one of the spouses.