Davis Law Firm

Family Law

Going Once, Going Twice, Sold: Can a Judge Make You Bid to Receive Your Interest in a Marital Business?

Attempts to divide the marital assets of a divorcing couple are often complicated. This is particularly true when a couple has been married for decades and owns a business. As a result, judges are often left in the unenviable position of attempting to ascertain the value of the marital businesses and then determine how to divide that business among uncooperative co-owners, without requiring liquidation of the business. In Ballegeer v. Ballegeer, 2019 Ark. App. 269 (Ark. App. 2019), a judge recently came up with a unique method for resolving this dilemma – simply make the divorcing parties bid against each other in a reverse auction.

In Ballegeer, the judge granted Mrs. Ballegeer’s divorce and ruled that the business had a value of $336,000.00 and that one-half interest was thus valued at $183,000.00. The judge then granted Mr. Ballegeer the first right to purchase Mrs. Ballegeer’s interest in the company. If he refused, Mrs. Ballegeer would have the right to purchase her ex-husband’s interest at the same price. However, if she then refused to purchase her ex-husband’s interest, the process would repeat itself with the price dropping by $5,000.00 increments until one of them exercised the right to purchase the other’s interest in the company.

At the time Ms. Ballegeer filed for divorce in 2015, the Ballegeers had been married for more than 30 years and had owned their landscaping/maintenance business for nearly 20 years. While both parties had been involved in the business at various times during the course of its operation, by the time of their separation in 2016, Mr. Ballegeer had complete control of the company and Mrs. Ballegeer was working in a retail store making $8.00 per hour. Mrs. Ballegeer had no access to the income stream from the business and was not in a financial position to be able to obtain a loan to buyout her husband’s interest in the company. Mr. Ballegeer, on the other hand, had a superior bargaining position and the financial ability to obtain a loan and buyout Mrs. Ballegeer’s interest in the company. As a result, the bidding process gave the parties an unequal opportunity to exercise the right to purchase their former spouse’s interest, providing Mr. Ballegeer the ability to purchase his ex-wife’s interest in the business for much less than its actual value.

Although this method for resolving the conflict was a creative solution to a difficult problem, the Arkansas Court of Appeals held that the judge had abused his discretion by not explaining his reasoning for requiring the parties to bid against one another in a manner that resulted in an unequal distribution of the marital property. In Arkansas, marital property is divided equally among the parties unless the judge determines that such a division is inequitable and explains why an unequal distribution of marital property is appropriate. In this case, the judge did not explain the reasons for his decision to impose a bidding procedure that facilitated an unequal distribution of the marital business between the parties. As a result, the Arkansas Court of Appeals sent the case back to the trial court so that the judge would have the opportunity to either alter or scrap the bidding process from his ruling or explain the basis for approving an unequal distribution. It remains an open question as to whether any explanation by the judge regarding his reasons for utilizing the unique bidding process would satisfy the Arkansas appellate courts.

Let’s Be Civil. Joint Custody of Your Child Depends On It.

Arkansas law favors joint custody of children following a divorce. But if mom and dad cannot cooperate and communicate with each other, a joint custody arrangement will not be tolerated by our courts.

Civility, or a lack thereof – we’re used to hearing about the issue in the political arena. But, as the Arkansas Court of Appeals made clear in Hewett v. Hewett, 2018 Ark. App. 235 (April 4, 2018), it is a vitally important concept in the realm of family law, as well. In the Hewett case, Kelly and Angie Hewett were divorced in 2012, at which time custody of the couple’s five year old son was awarded to Angie. The parties had difficulty communicating after the divorce and continually argued, with each repeatedly taking the other to court. In 2016, reciting a litany of complaints about Angie’s behavior, Kelly filed a motion to modify custody. The circuit court found that there had been a material change of circumstances warranting a change of custody and found that it was in the child’s best interest to award joint custody. Under Arkansans law, joint custody means both parents individually are entitled to an approximate and reasonable equal division of time with the child. Ark. Code Ann. §9-13-101(a)(5).

Angie appealed to the Court of Appeals, which reversed the circuit court’s decision. The appellate court noted that it is a long-standing rule that the primary consideration in child custody cases is the welfare and best interest of the child. It also stated that to change custody, the court must determine that a material change in circumstances has transpired. The court then found that the only circumstances mentioned by the circuit court was the parties inability to get along or communicate civilly with each other. However, the Court of Appeals determined that nothing about the Hewetts’ “bickering and name-calling was new or had significantly worsened.” Citing its holding in Li v. Ding, 2017 Ark. App. 244 (April 19, 2017), the Court of Appeals held that while an award of joint custody is favored in Arkansas, as stated in Ark. Code Ann. §9-13-101(a)(1)(A)(iii), “the mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error when cooperation between the parties is lacking.” Applying this principle to the Hewetts’ case, the Court of Appeals found that the circuit court’s award of joint custody was based on the parents’ inability to cooperate and communicate and, therefore, joint custody was inappropriate. Primary custody was restored to Angie.

We could all stand to see a little more civility in this world. But for divorcing couples seeking joint custody of their children, the Arkansas Court of Appeals has made it clear that this issue could not be more important.

The Love Boat: Arkansas Even Recognizes River Boat Marriages that Take Place in Other States

Sometimes a marriage license is not “just a piece of paper” and can be quite significant. In the recent case of Stovall v. Preston, 2018 Ark. App. 64, the Arkansas Court of Appeals upheld the validity of the marriage of a couple that were married more than twenty-seven years earlier by a boat captain in Louisiana. This occurred despite the fact that the marriage did not satisfy the technical requirements of Arkansas’s marriage comity law. Even with the apparent legal deficiencies, the Arkansas Court of Appeals declared the marriage to be valid in Arkansas because the couple had a copy of the Marriage License that was issued by the State of Louisiana.

Most states, including Arkansas, have statutes that determine the validity of marriages that occurred outside of the boundaries of the state. These laws are intended to extend comity (legal recognition) to foreign marriages, so as to avoid situations in which a person would be considered legally married in one state, but classified as unmarried in another state. Arkansas’s statute addressing this issue, allows for recognition of marriages “contracted outside of this state that would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided . . .” Ark. Code Ann. §9-11-107 (a). This protection was previously restricted by Ark. Code Ann. §9-11-107 (b) to only allow for comity with respect to marriages between opposite sex couples, but that portion of the statute was later held to be unconstitutional. As a result, under the language of the statute, marriages between any couples married in accordance with the laws of other states would be recognized in Arkansas so long as the individuals consummated the marriage in the state in which the marriage was originally contracted and “actually resided” in that state.

In Stovall, the son of an 83-year-old woman challenged the validity of his mother’s twenty-seven-year marriage as part of a guardianship proceeding. His mother and her husband had been married by a boat captain in Louisiana. Although the couple had obtained a valid Louisiana Marriage License, they had not “actually resided” in Louisiana in the manner described in Ark. Code Ann. §9-11-107 (a). In addition, the son alleged that there was no evidence that the couple consummated the marriage following the marriage ceremony. The son argued that his mother and step-father’s undisputed failure to reside in Louisiana rendered their marriage invalid.

Evaluating the merits of this claim, the Arkansas Court of Appeals acknowledged the “longstanding presumption that a marriage entered in due form is valid, and the burden of proving a marriage is invalid is upon the party attacking its validity.” The Arkansas Court of Appeals also noted that past Arkansas cases had treated marriage license statutes as “directory, not mandatory.” Based upon those presumptions of interpretation, the Arkansas Court of Appeals determined that it would uphold the purpose of Ark. Code Ann. §9-11-107, which “is to recognize as valid marriages contracted outside of Arkansas that would be valid by the laws of the state or country in which the marriages were consummated.” Although the Arkansas statute required residency in Louisiana, the Arkansas Court of Appeals held that the Louisiana Marriage License was sufficient to prove a valid marriage was contracted in accordance with Louisiana law and would thus be recognized in Arkansas. Apparently, love conquers all!

The Unexpected Serendipities From Not Cleaning Up the “Loose Ends” In A Divorce

Divorces are designed by law and intended by the parties to conclusively end their relationship with each other and separate their property so that each can go forward with their assets untethered from the marriage. Sometimes, the parties, their lawyers, and/or the law leaves some “money on the table” for the other spouse. This is, thus, a problem that could be cured by the legislature, the parties, and/or their lawyers – but probably will continue to happen to the unwary.

Our previous blog article (9/25/13’s “Too smart for their own good: unintentionally leaving everything to the just-divorced spouse“) discussed what can happen if the parties, while married, use the increasingly popular “revocable trust” in their estate planning and fail to revise both that trust, and their wills, upon divorce.  The Arkansas Court of Appeals, in Hudspeth v. Hudspeth, 2017 Ark. App. 30, has decided that the same can happen with life insurance. In that case, the husband had $60,000 of life insurance provided by his employer. The parties divorced, and the Separation Agreement gave to each party the “cash value” of their respective life insurance policies, and each of their own “basic benefit plans, special retirement supplements, and thrift savings plans,” and any right to claim “any survivor benefits under the other’s benefit plan as a surviving spouse.”

During their marriage, the husband had named the wife as the beneficiary of his life insurance. He did not change that upon divorce. Upon his death, his ex-wife made claim for it, and while the trial court found that the various general provisions recited above somehow removed the ex-wife as the death beneficiary, upon appeal, the Court of Appeals found that none of the above provisions specifically addressed the death benefit of life insurance.  The Court of Appeals confirmed that when insurance policies are not addressed in a divorce decree or property settlement, the rights of the designated beneficiary are determined in accordance with contract law without regard to the effect of a divorce between the insured and the beneficiary.  An ex-spouse named as a beneficiary in such a life insurance policy will be able to collect it.

The Times They Are A-Changin’: A Sing-Along with the Chief Justice of the Arkansas Supreme Court

On the heels of the United States Supreme Court’s decision in the Obergefell v. Hodges, 576 U.S. , 135 S. Ct. 2584 (2015), which effectively abolished prohibitions against same-sex marriage in the United States, state supreme courts around the country have been grappling with the legal implications of that ruling on state statutes that are not explicitly related to same-sex marriage, but for which one can argue an indirect impact on the “statutory benefits” received by married couples. In Smith v. Pavan, 2016 Ark. 437 (2016), the Arkansas Supreme Court recently resolved one such issue, but not without an unconventional dissent penned by the Honorable Howard W. Brill, then the Chief Justice of the Arkansas Supreme Court, in which he quotes Bob Dylan’s well known protest anthem, “The Times They Are A-Changin’” and advocates for a broader application of the Obergefell opinion in testing the constitutionality of Arkansas statutes.

In the Pavan case, three same-sex couples challenged the Director of the Arkansas Department of Health’s compliance with various Arkansas statutes limiting the individuals that can be included on a child’s birth certificate to the biological parents, with some specific statutory exceptions. In an attempt to apply the Obergefell opinion to Pavan, the trial court concluded that one of the birth certificate statutes was unconstitutional and creatively interpreted the other in such a manner as to avoid constitutional scrutiny. In the same ruling, the trial court held that a prior circuit court case had previously granted injunctive relief regarding birth certificates and, therefore, the doctrine of res judicata prevented the Director from refusing to issue amended birth certificates to the plaintiffs in the Pavan lawsuit.

The Arkansas Supreme Court found that res judicata was inapplicable in the Pavan case, because the orders issued in the prior court case did not address the specific birth certificate issues contested in the Pavan case. In addition, the Arkansas Supreme Court held that the United States Supreme Court’s Obergefell opinion “does not impact [the Arkansas statutes] governing the issuance of birth certificates and that these statutes pass constitutional muster.” Pavan, 2016 Ark. at *10. In explaining the constitutionality of the statutes, the Arkansas Supreme Court concluded that the statutes primarily relate to the relationship of the biological mother and biological father to the child, rather than the marital relationship of the husband and wife, and that it is this information that is required to be truthfully recorded on the child’s birth certificate. Id. at *12-14. Likewise, the Arkansas Supreme Court determined that the Arkansas Department of Heath has an important governmental objective in ensuring the accuracy of the information included on birth certificates – tracing public-health trends and providing critial assistance to an individual’s identification of personal health issues and genetic conditions.” Id. at *15-18.

After considering the arguments of the parties, the Arkansas Supreme Court held that “[it could not] say that naming the nonbiological spouse on the birth certificate of the child is an interest of the person so fundamental that the State must accord the interest its respect under either statute.” Id. at *17. Moreover, the Arkansas Supreme Court found there was no equal protection violations, noting that:

In the situation involving the female spouse of a biological mother, the female spouse does not have the same biological nexus to the child as the biological mother or the biological father has. It does not violate equal protection to acknowledge basic biological truths.Id. Based upon these findings, the Arkansas Supreme Court reversed the trial court’s ruling and dismissed the case against the Director of the Arkansas Department of Heath.

Due to the fact that he strongly disagreed with the Arkansas Supreme Court’s refusal to apply Obergefell in the Pavan case, Chief Justice Brill issued a spirited dissent. Chief Justice Brill is a respected educator, author and jurist. In addition to his reputation for well-reasoned legal analysis, he has a nearly legendary reputation in the Arkansas legal community for incorporating cultural references within his presentation of legal thought. He struck again in the Pavan case, beginning his dissent with the immortal words of the folk icon and recent Nobel laureate, Bob Dylan:

Come gather ’round peopleWherever you roam

And admit that the waters

Around you have grown

And accept it that soon

You’ll be drenched to the bone

If your time to you is worth savin’

Then you better start swimmin’ or you’ll sink like a stone

For the times they are a-changin’

. . . .

Come senators, congressmen

Please heed the call

Don’t stand in the doorway

Don’t block up the hall

For he that gets hurt

Will be he who has stalled

There’s a battle outside and it is ragin’

In his dissent, the Chief Justice argues that “[t]he logical extension of Obergefell, mandated by the Due Process Clause and the Equal Protection Clause, is that a same-sex married couple is entitled to a birth certificate on the same basis as an oppositesex [sic] married couple.” Pavan, 2016 Ark. at *23 (declaring the right to a birth certificate is a “corollary to the right to a marriage license”). He also explains that “[r]egardless of personal values and regardless of a belief that the United States Supreme Court may have wrongfully decided a legal issue, all are bound by the law of the land.” Finally, the Chief Justice admonishes all three branches of Arkansas’ government “to heed the call,” in adapting to same-sex marriage, because “[t]he times are indeed a-changin’.”

While his dissent is unusual in its form and not binding as precedent, it certainly is memorable.

When Frugality Does Not Pay: Divorcing the Spendthrift Spouse

One might presume that in a divorce between the proverbial spendthrift grasshopper and save-for-the-winter ant, the frugal partner would be entitled to some consideration when their marital property is divided in the divorce. A recent court decision makes it clear that foolish, extravagant and excess expenditures by one spouse do not preclude them from receiving in a divorce their full one-half share of all remaining property accumulated during the marriage– despite the frugal and thrifty saving habits of the other spouse.

Arkansas law provides that all property accumulated during the marriage, regardless of which spouse earned it and regardless of whose name it may be held in, is marital property. The law further provides that all marital property will be divided one-half to each party in the divorce unless that is inequitable, taking into consideration specified considerations, such as the length of the marriage; the age, health and station in life of the parties; the parties’ occupation; the amounts and sources of income; vocational skills; employability; and opportunities of each party, etc. (Arkansas Code Annotated §9-12-315). If indeed a Court makes an unequal distribution of property, the Court must state its basis and reasons for not dividing the property equally, and it is not unusual for trial courts to be reversed by the appellate courts for failing to explain an unequal distribution.

In the case of Wainwright vs. (Wainwright) Merryman, decided early in 2014 (2014 Ark. App. 156), the Arkansas Court of Appeals considered the arguments of a disappointed ex-husband that he should have greater share of the division of marital property in his favor because he saved considerable amounts of his own income while his ex-wife spent or concealed hers.

The Court ruled that a spouse does not lose their right to 50% of what is left by making pre-divorce transfers of all their property, even for free, and even though that strips them of all means of supporting their spouse and leaves their spouse without the means of subsistence. The court’s only consideration was that such expenditures be in good faith and without intention of defrauding the other spouse’s estate.

The In’s And Out’s Of Divorce In Arkansas

The breakdown of the marital relationship is stressful enough; the actual divorce process should not add to that stress.  By focusing on the legal consequences of divorce – children, property and money – and not the troubled relationship itself (granted, easier said than done), you will be several steps ahead of the general divorcee in getting on with your life.

As I sit with my client in the back of the courtroom waiting for the bailiff to call my client’s name, I glance over at her soon-to-be-ex-husband.  He is unrepresented and is seething with nervousness and anger.  My prior attempts to negotiate visitation rights and child-support payments ended with several choice words being yelled at me over the phone.

Unfortunate, sometimes, is the state of affairs of divorce.  Still, divorce is a necessary evil.  So, how can a spouse protect his or her interest in the divorce but facilitate the divorce so that it brings no more harm than is necessary?  The obvious answer is to hire an attorney.  The additional, not-so-obvious and difficult answer is to come to an agreement with your spouse so that the consequences of divorce are not litigated in court.  The following are a few things to consider:

Custody–First and foremost, who gets the children?  This is not always an easy question to answer.  What is in the child’s best interest determines who is granted custody of the child.  Factors the court considers in making this determination include, among others: the age, gender and health of the child; the moral fitness of each parent; each parent’s attitude toward the child; the parent’s past conduct toward the child; the stability of the child’s social and family relationship; and the reasonable preference of the child.  When these factors are substantially equal, the court will give preference to the parent that has been the primary caregiver of the child.  Traditionally, the mother, as the homemaker, held the role of the primary caregiver.  However, the traditional roles of a husband and wife rarely hold true today, and the determination of who is the primary caregiver is a factual determination.  An attorney will be able to provide guidance on this sensitive issue.

Visitation–After custody is determined, visitation rights will be granted to the non-custodial parent. The court will seek to promote the relationship between the child and the non-custodial parent.  Only in rare circumstances are visitation rights denied to a non-custodial parent.  If the parties cannot agree to a visitation schedule, the court will impose one.  The default visitation schedule includes visitation every other weekend, one late afternoon/evening period per week, alternating holidays and two weeks during the summer.

Child Support–The question is not whether the non-custodial parent will have to pay child support, but how much.  The determination of how much child support is paid is dependent upon how many children are being supported and the non-custodial parent’s income.  Child support rarely has anything to do with the custodial parent’s income.  If you are denied custody of the children, be prepared to pay child support.

Property–Courts have authority to order an equitable distribution of all marital property, or any property that is acquired during the marriage.  Property that was separately brought into the marriage by either the husband or wife will be considered separate property unless it is commingled with or treated as marital property, e.g., wife including her husband on her savings account.  Division of marital property is not always 50/50, but depends upon what the court finds equitable.  The parties’ age, health, status, employment, assets and needs are among many factors considered by the court in dividing marital property.

Alimony–The purpose of alimony is to ensure that the person whose economic dependence has resulted from the marital relationship receives an adequate income stream after the divorce.  Alimony can be awarded to either spouse.  The trend is to award alimony less frequently, and the court considers many factors in determining whether and how much alimony to award.  Factors considered include the parties’ past standard of living, the financial circumstances and needs of the parties, and the parties’ respective earning abilities.

Modification–Custody, visitation, child support and alimony can all be modified by the court.

No divorce is ever without its pains.  With a little foreknowledge, and aid of an attorney, the pains may, however, be lessened.

Too smart for their own good: unintentionally leaving everything to the just-divorced spouse

Most people in the uncomfortable throes of a divorce want to ensure that upon the conclusion of the process, their property salvaged through difficult proceedings will not go, in the event of their subsequent death, to their former spouse.  Both estate planning attorneys and divorce lawyers are aware of this and typically take steps to ensure it won’t happen.  From another practice angle, revocable trusts are generally considered the “smart” or “best practice” alternative for estate planning – but in divorce cases can become a trap for the unwary, of which both clients and lawyers need to be aware. Our experience in a recent case shows that the intersection of divorce and estate planning law and circumstances can result in a divorced spouse receiving the ex’s entire estate.

 

To the extent the settlement agreement or divorce decree doesn’t specifically resolve all property interests, Arkansas law provides a backstop for the presumed intent of the parties. Arkansas Code Annotated Section 9-12-317 (see End Note), provides that upon divorce, any property owned by the divorced parties with rights of survivorship is automatically converted to property held as “tenants in common” where each is deemed to own one-half, with no survivorship rights.  And Arkansas Code Annotated Section 28-25-109 provides that a will or any part thereof is revoked by a divorce as to all provisions in the will in favor of the divorced spouse. One would think (and probably many divorce lawyers presume) that this provision, without further action, takes care of any estate planning done during the marriage by writing the divorced spouse out of it.  Wrong.

 

It has become very popular in recent years to avoid probate proceedings by setting up a revocable trust, which holds all of the clients’ property, is managed by the clients as trustees for their benefit as beneficiaries and has terms identical to what would be typically found in a will for disposing of their property at death. If, indeed, all of the clients’ property is owned by the trust at death, the successor trustee assumes duties and administers and distributes the trust assets informally, completely avoiding probate, and any related costs, hassle and delay. An adjunct will is also drawn, to catch any property that may not have been titled to the trust at death and directs it to the revocable trust so that all of the property will be held in a single “pot” and distributed according to the comprehensive directions in the trust.  Such wills are referred to as “pourover wills.” Revocable trusts are unquestionably a valuable estate planning tool; a complete discussion of them is beyond the scope of this brief post.  However, in a divorce situation, they become a trap for the unwary.

 

Arkansas statutes do not address any effect that a divorce may have on a revocable trust. Thus, if the parties’ house or investment accounts are owned in a trust, which leaves everything to a surviving spouse, unless the divorce settlement or decree specifically addresses those assets, post-divorce, they will still be owned by the trust, and upon the death of the first ex-spouse, will all pass to the survivor.

 

Most attorneys would catch this, and make sure the trust properties were specifically addressed and resolved in the divorce.  Here’s the trap for the unwary: The couple has a revocable trust which holds all of their property, leaving it all upon the first death to the surviving spouse; divorce occurs; the attorneys and court very carefully define and distribute the trust-held property equally between the parties.  Ex-husband later dies, holding separately in his own name half of the formal marital property.  Ex-husband (and apparently his attorney), relying on Arkansas law to void any will provisions for a surviving spouse, has not amended his will.  However, his will, drawn during marriage, leaves nothing to the surviving spouse, but being a pourover will, leaves it all to their (still existing though empty) revocable trust – which has as its primary beneficiary the now divorced wife.  Because the will itself has no “provisions . . . in favor of the testator’s spouse so divorced,” it is not revoked; under applicable law, the revocable trust is a separate legal entity, as distinguished from the ex-wife, and thus receives all of the ex-husband’s estate for the benefit of his ex-wife –  though undoubtedly this is contrary to the deceased ex-husband’s final wishes.  The conclusion: Any divorce proceedings should be accompanied by concurrent, focused and careful estate planning.

 

(End Note:

Arkansas Code Annotated is an indexed organization of all of Arkansas’ written laws, available on the internet; search for “Arkansas Code”  or go to http://www.lexisnexis.com/hottopics/arcode)

Those Cheating on Their Marriage Must Pay

A recent Arkansas Court of Appeals case points out that those cheating on their marriage must pay the price for the paramour.  It further illustrates the practical problem arising from the current social issue of same-sex marriages, which under current Arkansas law could  cause those who seek an alternative lifestyle to lose custody of their minor children.

The Arkansas Court of Appeals, in a December 2011 decision, addressed two interesting social problems arising from a divorce where a same-sex relationship occurred.  Robert and Lisa Bamburg married in 1988, had two children, separated in 2009 and proceeded to divorce.  Both were demonstrated by the testimony to be good parents.  However, the evidence showed that  during the marriage, Ms. Bamburg developed a romantic relationship with another woman. Typically, under Arkansas law, “fault” in causing the divorce (cruelty, adultery, indignities) has little or no effect on alimony, property settlement, child custody and visitation or child support, each having their own applicable principles unrelated to whose fault may have caused the divorce.

However, in this context, the fact of the illicit relationship had two very significant impacts on the final trial decision, which was affirmed on appeal by the appellate court: First, the husband sued to recover funds that had been spent during the marriage on the illicit relationship. The court awarded Mr. Bamburg several thousand dollars for such monies, though not all that he had asked for. The appellate court, citing the 2003 decision in Williams v. Williams, 82 Ark. App. 294, 108(S.W.3d 629), held that it is permissible to have one spouse reimburse the other for improper expenditure of marital funds during the marriage for a paramour. In Arkansas, the law is settled that you have to pay for your paramour in a divorce.

Second, despite her lesbian relationship, Ms. Bamburg was awarded custody of the children. However, the court ordered that neither parent while in custody of the children could have overnight visits by romantic, unmarried partners, citing “unmarried cohabitation with a romantic partner…in the presence of a child cannot be abided.”  What is implicit in this decision is that Mr. Bamburg  may re-marry a conventional wife and continue unimpeded in her presence with any visitation awarded him by the court. However, Ms. Bamburg, not having the advantage of legal same-sex marriage in Arkansas, cannot legalize her lesbian relationship in Arkansas, and thus threatens losing custody of her children if she seeks to establish a marital-type relationship with her partner in the presence of the children.  Whether one would legally accomplish a same-sex marriage elsewhere and then “bring” it to Arkansas is unresolved in the Arkansas courts.  Bamburg v. Bamburg 2011 Ark. App.546.

Aesop’s Fable Finds Its Way Into the Courtroom

Grasshopper husband cannot claim the benefit of ant wife’s labors during the marriage…

A recent Arkansas decision determines that laziness precludes husband receiving the standard one-half interest in marital  property.  Arkansas law provides that in a divorce, the standard rule for division of property is that it should be divided equally between the parties. Unequal division by the divorce court is very much the exception, and before an unequal division can be sustained, Arkansas Code Annotated §9-12-315 requires the Court to consider nine factors before making an unequal division of property, and state with specificity in its  written opinion the Court’s reasons for the unequal division. Continue reading