Wednesday, May 20, 2015

Newsweek gets it wrong on Arkansas divorce law

Posted By on Wed, May 20, 2015 at 11:36 AM

click to enlarge WHOOPS: Getting the facts wrong on divorce law in Arkansas. - WIKIPEDIA
  • WHOOPS: Getting the facts wrong on divorce law in Arkansas.

A few days ago, Newsweek ran an item about a supposed trend in states passing laws making it more difficult to get divorce, entitled "Breaking Up Is Hard to Do in Arkansas; Why Divorce Laws Are Getting Stricter." Despite the title, the article cited no examples of Arkansas law changing in recent years to make it harder to get a divorce, but it did include the following statement:

Arkansas has a 540-day standard processing time for divorce, and a couple needs to have an 18-month separation before they can even file. From start to finish, a divorce there can take almost three years.

This is flatly false. I know people personally who've gotten divorced in under 18 months in Arkansas. Obviously, a divorce can take almost three years; I imagine it could take a decade, under the right extremes. It normally does not. So where's the supposed 540-day period coming from?

Stefan McBride, a family law attorney in Little Rock, has written about this particular piece of misinformation in the past on his blog, originally in response to a Huffington Post article from 2014. "I don’t think any lawyer who took 540 days to get an Arkansas divorce would stay in business very long," he wrote then. I called McBride to ask him to set the record straight. 

"That's only if you're going to plead 'separation' as the grounds for your divorce. To get to 540 [days], it's 18 months," McBride said. (Note that in the above quote, Newsweek makes it sound as if the 540 day period is somehow in addition to the 18-month period, which I suppose is where the specious "almost three years" figure comes from.) "A lot of states — Florida, California — they'll have true no-fault, where you can just say 'I want out,' and you can't do that in Arkansas. To just say 'I want out,' you have to have been separated for 18 months."

However, in practice, the distinction between a no-fault divorce and one on other grounds is mostly a semantic one.

"What most people do is they just roll over on grounds and they plead 'general indignities,' and then you can get it done in 31 days," he said; citing 'general indignities' indicates the other person has made one's life intolerable. "Technically, to prove 'general indignities,' you're supposed to show that the person has been screaming in your face or beating you up or whatever — but practically, if you look at the cases, it never works out that way. ... Practically, you plead it, the other person rolls over because they want to get divorced too, and you both go on down the road."

McBride said Arkansas actually makes it less burdensome to get divorced than many of its neighbors.

"In Arkansas, the residency requirement is only 60 days, which is the shortest I've ever seen, except for maybe Reno or something, where you can fly in and get divorced. I know Texas is 6 months. Louisiana's and Oklahoma's are longer [than Arkansas]. ... And in Arkansas, the processes are not complicated, and it's pretty cheap to file. It's $165. ... So I would say that Arkansas is one of the easier ones."

Some rules may vary between jurisdictions within the state. For example, he said, judges in Pulaski County require both parties in a divorce to take a parenting class, if there are children involved. "So that's one kind of small hurdle before you can get divorced. No other judges across the state do it, to my knowledge. ... but if you get to the end and you don't take the class, you're just going to lose custody. It's a pretty harsh rule."

What about covenant marriage? That's the optional enhancement of marriage vows that couples may choose to take, enacted by the legislature during the Mike Huckabee administration as a supposed means of strengthening the family. Covenant marriage actually can make a divorce more difficult in practice, McBride said. (Of course, the vast majority of marriages in Arkansas are not covenant marriages.)

"It's like a super-marriage," he said. "It makes grounds quite a bit harder — really, truthfully, significantly harder."

To plead no fault by separation, instead of 18 months, "if you've got kids it's got to be 2 1/2 [years]. You're supposed to get counseling. ... Unless you can show adultery or physical or sexual abuse, you're going to have to wait the 2 1/2 year period."

"So what that ends up doing practically is it makes people lie ... people lie about adultery, about counseling. I think I've had three, and one of them — you know, I don't like to bring up adultery [in a divorce proceeding], because your kids may read this thing one day. So I just buried it and the judge signed off on it, because most judges don't really want someone coming in there trying to prove adultery. As you can imagine, that's not pleasant."

"It's an unnecessary logistical hurdle that does not serve the purpose it was intended to serve," McBride said. "I know, it resonates with people who feel like our values are in danger and marriage is disappearing and this is going to inject it with some added strength. But it does not. ... The General Assembly is not well suited for writing your marriage vows."

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