Divorce/Separation/Annulment

Under Arkansas law, a divorce may be either contested or uncontested. A contested divorce is when you and your spouse disagree about the reasons and terms of getting a divorce and because of the disagreement, it is necessary that the judge presiding over the case hold a trial.  An uncontested divorce is when you and your spouse agree on the terms for the divorce and thus, there is no reason for the judge to hold a trial.  

In certain uncontested divorces, a judge may grant a divorce by affidavit. It is important to understand that not all judges grant divorces by affidavit, and you must call your judge’s trial court assistant to determine if your judge allows this. 

See the steps in involved in a Divorce by Affidavit below:

The first step is to file a Complaint for Divorce in the proper jurisdiction. The proper jurisdiction is where either you or your spouse have resided in Arkansas for at least 60 days before the complaint is filed. The complaint must also state what your grounds for divorce are. In the complaint, the plaintiff is you (the person filing for divorce) and the defendant is your spouse. 

After the complaint is filed, the defendant must be served with the Complaint for Divorce and summons. The summons is provided by the court after filing the complaint. Once the defendant is served, he or she will have 30 or 60 days from the date of service to file an answer to the complaint unless he or she is in jail. If he or she is in jail, an answer must be filed in 60 days

If the spouse does not answer the complaint within the 30-to-60-day time limit, then the court may proceed without the other party by granting a divorce by affidavit. 

NOTE: Another way to receive a divorce by affidavit is for the defendant to waive service. To waive service, you must send the defendant an Entry of Appearance, Waiver of Service of Summons, and Waiver of Notice. The defendant must sign the Waivers in front of a notary public. 

Once the defendant has signed the waiver forms or has not answered the complaint within 30 or 60 days, the case may continue by affidavit testimony. To do so, you must file a deposition and your witness must file a deposition. 

• A witness deposition is written testimony provided by someone with knowledge that (1) you are a resident of the state of Arkansas, and (2) have lived separately from your spouse since the date stated in the complaint. The witness may also be required to testify that they have first-hand knowledge of the reason you are seeking a divorce. This testimony is normally offered in person during a hearing but is now being offered in a written affidavit under oath.
• A party deposition is your testimony. A party deposition is your sworn, written statement regarding the grounds of divorce that you are seeking. 

After the witness deposition and party deposition are filed in court, the judge will review all the court documents to determine if granting the divorce by affidavit will be fair. If so, the judge signs a divorce decree and the divorce is now final. 

It is important to remember that not all judges allow divorce by deposition. It is important that you call the trial court assistant for your judge to determine if witness and party depositions may be used instead of attending a court hearing. The judge can still require you to come to court to finalize the divorce if she or he requires an in-person hearing.