5 Common Family Law Myths

September 14, 2016

When it comes to family law issues, there are a lot of things to consider. There is also a lot of speculation and assumption about what is and is not the law. Here are some of the most common myths I have heard from fellow Arkansans.

FAMILY LAW MYTH #1: The father of my child and I were never married but his name is on the birth certificate so he is legally the father.

FALSE. There is a presumption that your spouse is the father of your child if the child was born during the marriage. However, if a child was born out of wedlock, paternity is only established by DNA testing or execution of an affidavit acknowledgment paternity by the father. Merely placing the father on the birth certificate does not establish that he is the legal father. This means that he has no legal rights to the child and unless paternity is established by appropriate means, child support cannot be collected from him and other rights of inheritance for the child are not available. Although having the father’s name on the birth certificate does not convey paternity, it may be used to aid in the presumption of paternity when trying to prove it is so.

FAMILY LAW MYTH #2: If my spouse or myself refuses to sign “divorce papers” then we cannot finalize the divorce.

FALSE. There are many documents floated back and forth between spouses and the divorce process can be confusing. I often talk with clients concerned that their spouse won’t agree with the divorce or will ignore any papers served upon them just to be spiteful. We probably all remember the husband in the movie Twister chasing an outbreak of tornados with his new girlfriend, risking life and limb to beg his wife to sign the divorce papers. In truth, if you file for a divorce your spouse has 30 days from the day s/he was served the papers to respond by answering your Complaint for Divorce. Should your spouse not respond within that timeframe, s/he loses his or her time to respond and as long as you can prove that s/he was served, a judge can order the divorce without your spouse’s signature. If your spouse does answer and you move forward with a contested divorce, the judge can still sign and order a Decree of Divorce finalizing it as s/he sees fit regardless of whether the both of parties agree.

FAMILY LAW MYTH #3: My child’s other parent is not paying child support on time or as required so that justifies my refusal to allow that parent his or her visitation with the child.

FALSE. Although it may be frustrating and seem unfair, you cannot deny your child’s non-custodial parent visitation just because s/he is not paying child support. Just because the other parent is in violation of a court order does not mean that you are relieved from following the provisions ordering you to do or not do things and if you violate the order you can be held in contempt, which could expose you to court sanctions. The best course of action you have is to take the non-custodial parent back to court for non-payment of child support to enforce the order. The only possibly permissible reason to withhold visitation from the non-custodial parent would be if the child was in serious, immediate, and imminent danger. In that case, you should seek an emergency temporary court order based on that issue as soon as possible, pending further evaluation of the matter by the court. This is true for other terms within court orders as well. You may not violate the terms of the court order just because the other party is not complying with the court order.

FAMILY LAW MYTH #4: I want to pursue a no fault divorce citing irreconcilable differences or something of that nature. Can I do that?

NO. Arkansas is not a no fault state, meaning that regardless of the reason for the demise of your marriage you will have to prove that one party was at least a little more at fault than the other. The closest grounds for divorce we have in Arkansas are 1) general indignities and 2) separation for eighteen (18) months or more. To obtain a divorce based on general indignities you will have to prove that your spouse presented such indignities upon you to justify a divorce. For the ground of separation, you must have lived separate and apart for at least 18 months.

FAMILY LAW MYTH #5: I was recently served with divorce papers and in those papers I received a restraining order. Does this prohibit me from approaching my spouse?

NO. A restraining order by its nature prevents you from performing some act. Although it may be surprising to see a document bearing this title in your domestic relations case, it serves a very important purpose. This type of restraining order prevents marital property from being prematurely removed from the court’s authority prior to dissolution of the marriage. When a divorce is filed, the property of the parties, real and personal, falls under the jurisdiction of the court, meaning that everything is essentially frozen until a judge orders disposition of the divorcing parties’ property. This includes your house, car, and money to name a few things. This does not mean that these things are not accessible to you it just means that you can not sell, convey, or encumber any such property. You are also prevented from removing, damaging, or destroying any property. This ensures that all martial property remains and can be fairly considered in the equitable division of property rights during the dissolution of marriage, protecting both parties.