Many couples in Arkansas live together, share finances, and raise children without a formal marriage license. This situation raises legal questions about their rights regarding property, inheritance, and what happens if the relationship ends. Understanding Arkansas law on this topic is important to avoid unforeseen issues.
Status of Common Law Marriage
Arkansas law does not permit the formation of common-law marriages within the state. This means that regardless of how long a couple lives together or presents themselves as married, they will not be legally recognized as married in Arkansas without a marriage license and formal ceremony.
State law, such as Arkansas Code 9-11-203 which requires a marriage license, defines what makes a marriage valid.1Justia US Law. Arkansas Code § 9-11-203 (2024) – Issuance by Clerks Because there’s no provision for common-law marriage, couples cannot establish one while living in Arkansas. This affects access to legal benefits tied to marital status, like certain healthcare decisions and spousal employment benefits.
Out-of-State Recognition
While Arkansas doesn’t allow common-law marriages to be formed within its borders, it does recognize those validly established in other states that permit them. If a couple legally formed a common-law marriage in a state like Texas or Oklahoma and then moved to Arkansas, Arkansas courts will acknowledge their marital status.
To gain this recognition, the couple must prove their common-law marriage met all legal requirements of the state where it was formed. These requirements often include an agreement to be married, living together, and presenting themselves publicly as spouses. The person asserting the marriage exists is responsible for proving its validity.
Property and Asset Division
When unmarried couples in Arkansas separate, dividing property can be challenging because state law doesn’t recognize common-law marriages formed within its borders. Marital property laws, like Arkansas Code 9-12-315 for equal division in divorce, do not apply.2Justia US Law. Arkansas Code § 9-12-315 (2024) – Division of Property – Definition Courts treat unmarried cohabitants as separate individuals regarding property.
Property division for unmarried couples depends on how assets are titled. If an asset is in one partner’s name, that partner retains ownership. For jointly titled property, the form of titling (such as tenants in common or joint tenants) determines how it’s divided.
Disputes can arise if property is titled to one partner despite contributions from both. The non-titled partner might seek remedies like unjust enrichment, arguing it’s unfair for one party to keep a benefit contributed by the other without payment. Such claims require proof of contributions.
To avoid these issues, unmarried couples can create cohabitation agreements. These contracts specify how property and finances will be handled if the relationship ends. Without an agreement, property division relies on ownership principles and potential equitable claims. For jointly owned real estate where partners disagree, a partition action can force a sale, with proceeds divided based on each partner’s interest.3Justia US Law. Arkansas Code Title 18, Subtitle 5, Chapter 60, Subchapter 4 (2024) – Partition and Sale of Land
Parental Rights
When unmarried couples with children separate in Arkansas, determining parental rights, including custody and child support, focuses on the child’s best interests. The first step is often legally establishing paternity. A child born to an unmarried woman is in her legal custody until a court orders otherwise.4WomensLaw.org. Arkansas Code § 9-10-113. Custody of Child Born Outside of Marriage A biological father, even if on the birth certificate, needs a court order or formal paternity acknowledgment to gain custodial or visitation rights.
Paternity can be established by signing a voluntary Acknowledgment of Paternity form, filed with the Arkansas Department of Health. If paternity is disputed, either parent or the state can ask a court to establish it, often through genetic testing. The Arkansas Department of Health also has a Putative Father Registry, where men who believe they are fathers can register to receive notice of legal proceedings about the child.5Arkansas Department of Health. Putative Father Registry
Once paternity is established, either parent can request court orders for custody, visitation, and child support. Arkansas law prefers joint custody if suitable and makes decisions based on the child’s best interest, considering factors like:
- The child’s relationship with each parent.
- Each parent’s ability to provide a stable environment.
- The child’s adjustment to home, school, and community.
- The mental and physical health of everyone involved.
- Each parent’s willingness to support the child’s relationship with the other parent.
The child’s preference may be considered if they are old enough. In domestic violence cases, the safety of the child and the abused parent is a primary concern.
Child support calculations follow state guidelines, using an income shares model based on both parents’ combined income.6Arkansas Judiciary. Arkansas Child Support Guidelines The Office of Child Support Enforcement helps establish and enforce these orders. Support obligations continue until the child turns 18 or graduates high school. Modifications can be sought if there’s a significant change in circumstances, like income.
Estate and Inheritance Matters
For unmarried individuals in Arkansas, estate laws do not grant automatic inheritance rights to a partner if the relationship wasn’t formally married. Without a valid will, an unmarried partner cannot inherit from their deceased partner’s estate under Arkansas intestacy laws, which prioritize legally recognized spouses and relatives.7Justia US Law. Arkansas Code § 28-9-214 (2024) – Tables of Descents
Rights like dower and curtesy, which provide for surviving spouses, apply only to legally married individuals. An unmarried partner cannot claim these. However, if a common-law marriage was validly formed in another state before moving to Arkansas, the surviving partner might have inheritance rights, if the out-of-state marriage’s validity is proven.
Unmarried couples who want a partner to inherit must use estate planning. A will is a primary tool. In Arkansas, a will requires the person making it (testator) to be at least 18 and of sound mind, with the will written, signed, and attested by at least two witnesses. A will allows an individual to name their unmarried partner as a beneficiary.
Other methods include naming a partner as a beneficiary on life insurance or retirement accounts. Arkansas law allows Payable on Death (POD) designations for bank accounts (Arkansas Code 23-47-204) and Transfer on Death (TOD) deeds for real estate (Arkansas Code 18-12-608), letting assets pass directly to beneficiaries.8FindLaw. Arkansas Code § 18-12-608 – Beneficiary Deeds — Terms — Recording Required Living trusts and joint property ownership with rights of survivorship are other options. Without these measures, an unmarried partner in a relationship formed in Arkansas is unlikely to inherit. The previously mentioned Arkansas Code 23-47-204 allows for POD designations.9Justia US Law. Arkansas Code § 23-47-204 (2024) – Payable on Death Provisions for Deposit Accounts
Ending the Relationship
When cohabiting couples in Arkansas separate, the process differs from a formal divorce because the state doesn’t recognize common-law marriages formed within its borders. There is no legal “marriage” to dissolve, so divorce procedures and grounds do not apply. The separation is a cessation of cohabitation.
This means spousal support, or alimony, is unavailable, as it requires a legal marriage. Financial separation for unmarried partners focuses on dividing jointly owned property and establishing child custody and support, if applicable.
Legal issues can arise with intertwined finances. If a cohabitation agreement exists outlining asset and debt division, its terms will govern. Disputes are handled in civil court under contract law.
Without such agreements, resolving disputes may require civil legal actions. If domestic abuse occurs, either party can seek an Order of Protection under Arkansas law (such as through the Domestic Abuse Act, Arkansas Code 9-15-101), regardless of marital status.10Justia US Law. Arkansas Code § 9-15-101 (2024) – Purpose (Domestic Abuse Act) Addressing jointly held debts is also important, as creditors can hold both individuals liable.