Dividing property can be one of the most complex and emotionally charged parts of a divorce. In Arkansas, understanding the difference between marital and separate property is key to knowing what you’re entitled to—and what you may have to give up. Whether you’re preparing for divorce or in the middle of one, knowing how Arkansas law treats property division can help you protect your financial future.
Arkansas Is an “Equitable Distribution” State
Arkansas follows the equitable distribution model, meaning that marital property is divided in a way that is fair—but not necessarily equal. This gives the court some discretion to consider the specific circumstances of each case. Unlike “community property” states where everything is split 50/50, Arkansas judges aim for fairness, which can sometimes lead to uneven division.
Before the court can divide anything, it must first determine what property is marital and what is separate.
What Is Marital Property?
Marital property includes most assets and debts acquired by either spouse during the marriage, regardless of whose name is on the title. Some common examples of marital property in Arkansas include:
- Income earned by either spouse during the marriage
- Real estate purchased during the marriage (even if only one spouse is on the deed)
- Retirement accounts, pensions, and 401(k)s accrued during the marriage
- Vehicles, furniture, and household items bought while married
- Business interests developed or expanded during the marriage
Even if only one spouse worked outside the home or made the purchase, these assets are typically still considered marital.
What Is Separate Property?
Separate property usually belongs to one spouse alone and is not subject to division. In Arkansas, separate property generally includes:
- Property owned by one spouse before the marriage
- Inheritances received by one spouse (either before or during the marriage)
- Gifts given specifically to one spouse
- Compensation from a personal injury settlement awarded solely to one spouse
- Property excluded from the marital estate through a valid prenuptial or postnuptial agreement
However, even separate property can become marital under certain conditions—particularly if it gets commingled with marital assets.
The Problem of Commingling
Commingling occurs when separate property is mixed with marital property to the point that it’s no longer distinguishable. For example:
- If one spouse deposits an inheritance into a joint bank account and both spouses use that account regularly, the inheritance may become marital.
- If separate funds are used to improve a jointly owned home, the increased value could be considered marital property.
In these situations, the burden is on the spouse claiming the property is separate to prove it through clear documentation.
How Courts Divide Property in Arkansas
Once property is categorized, the court must divide the marital estate equitably. Judges may consider a range of factors, including:
- The length of the marriage
- Each spouse’s financial and non-financial contributions
- Each party’s earning capacity, education, and work history
- Whether one spouse sacrificed career opportunities to support the other or raise children
- The age and health of both spouses
- Tax consequences of dividing assets
While a 50/50 split is common in many cases, courts may adjust that balance based on fairness and need.
What About Debts?
Marital debt is also subject to division. This includes:
- Mortgages
- Credit card balances
- Car loans
- Medical bills
- Personal loans taken out during the marriage
If the debt was incurred jointly or benefited both spouses, it will likely be divided equitably, even if only one spouse’s name is on the account.
Can We Divide Property Without the Court?
Yes. Arkansas courts will typically honor a property settlement agreement made between spouses, as long as it’s fair and voluntarily entered into. Many couples prefer to resolve property division through mediation or collaborative divorce, which can save time, stress, and legal expenses.
Working with an attorney during negotiations is crucial to ensure you’re not giving up rights you may not realize you have.
Final Thoughts
Dividing property in an Arkansas divorce isn’t always straightforward, especially when emotions and finances are tightly intertwined. Knowing the difference between marital and separate property—and how commingling or equitable factors come into play—can help you make informed decisions and avoid surprises. We recommend family law attorney anchorage.