How is Property Divided in Arkansas Divorce?

Full question:

Prior to my current (2nd)marriage I was married and living in Florida. My 1st husband purchased a home - his name only was on the deed but mine was also on the mortgage. My 1st husband and I divorced. I re-married and my second husband and I lived in the home for one year. My 2nd husband drew unemployment during this time. My first husband quit-claimed the home over to my 2nd husband and myself. We obtained a new mortgage in both our names. We also took out a loan in both our names for repairs on the home. We sold the home, making a 60,000. profit. We paid off the home-improvement loan. I don't know what my 2nd husband did with the remainder of the money. Two years later, we did pay off a $26,000.00 loan we had made for a down payment on our current home. I am now divorcing my 2nd husband. Is there any way for me to get that equity money from the first home back, or get this second home since the $26,000 probably came from the sale of the 1st home (I cannot prove that)? If so, what Arkansas law says that I can.

• Category: Divorce
• Subcategory: Property Settlements
• Date: 04/07/2025
• State: Arkansas

Answer:

The answer to your question depends on whether your state is an 'equitable distribution' state or a 'community property' state. In an equitable distribution state, such as Arkansas, the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. There is no fixed standard to divide property in equitable distribution states, and each case will be decided on its facts, with consideration of the rights of each party and any children of the marriage. In determining an eqitable division of the property the court may consider, among others, the following factors:

* Fault in the breakup of the marriage
* Benefits the innocent spouse may lose due to the breakup of the marriage
* Disparity of earning power
* Health problems and age of spouses
* Needs of children
* Indebtedness and liabilities
* Tax consequences of the division of property
* Earning power, education, business opportunities, capacities, and abilities of the spouses
* Need for future support
* Nature of the property
* Wasting of community assets by the spouses
* Credit for temporary support paid
* Gifts to or by a spouse during the marriage
* Increase in value of separate property through community efforts by time, talent, labor, and effort
* Expected inheritances
* Attorney's fees owed
* Value of the separate estates of the spouses
* Actual or constructive fraud committed by a spouse

In cases where the asset is claimed to be converted to marital property by commingling, in order to prove the separate nature of the property, the other spouse may attempt to trace the funds used to separate property, such as when funds from a spouse's separate property home owned before marriage are used to purchase a joint home after marriage. In such cases, having documentation regarding the source of funding is used to trace the separate funds used to purchase the marital asset.

Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.

The court makes a distinction between marital assets and separate assets Marital assets are assets acquired during the marriage. Separate assets are asset which one party acquired prior to a marriage and maintained as separate property, property inherited during the marriage and property received as a gift by one party during the marriage. A party can turn a separate asset into marital asset by commingling the asset. Examples include: adding a new spouse's name to a bank account, car title, or deed to the home as joint tenants with right of survivorship.

Gifts between spouses pose problems. Many courts presume gifts from one spouse to another to remain marital, rather than separate, property. Some courts allow this presumption to be rebutted with clear evidence that the gift was intended to be the property only of the recipient. Courts can also look at factors such as the intention of the giver, along with whether the gift is subsequently used by one or both spouses.

A postnuptial agreement is a written contract created by two people after they are married. The agreement typically lists all of the couple's property, including assets liabilities, income and expectations of gifts and inheritances, as well as their post-marital debts. A postnuptial agreement specifies how post-marital property, as well as the appreciation, gains, income, rentals, dividends and proceeds of such property, should be distributed in the event of death, separation or divorce, rather than protecting assets from creditor claims against debts of a spouse. It will generally be upheld by the court if it was entered into knowingly, freely, and fairly. It may be invalidated if dishonesty, fraud, coercion, or duress is involved. The spouses should disclose their assets and debts in writing and have the opportunity to consult an independent attorney.