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Using a prenuptial agreement to control property division in Arkansas

We’ve been looking in our last couple posts at the approach to property division used in Arkansas. As we’ve pointed out, property division in Arkansas should not be understood as an inevitable 50-50 split, but as a 50-50 split in which judges are conscious of the issue of fairness.

One important matter to point out is that Arkansas law allows judges not only to alter the 50-50 division of marital assets, but also to award separate property under certain circumstances. Whenever a judge does either of these things, though, a basis and reasoning is supposed to be provided.

While state law lays out rules for the division of property in divorce, these are only default rules. Couples can come to an agreement prior to marriage about how their assets will be divided in the event of divorce, and thereby trump the default rules. Couples can also agree to redefine how marital property is defined under such an agreement.

Arkansas defines marital property as all property acquired by either spouse after marriage, with certain exceptions, such as property acquired by gift or inheritance and property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift or inheritance. There are other exceptions as well, and couples who don’t have an agreement which defines what constitutes marital property should be aware of who the definition applies to their own separate property before initiating the divorce process.

Couples looking to negotiate a prenuptial agreement should be sure to work with an experienced attorney in doing so, as this ensures that the agreement is not only in their interests, but also that it is valid and properly executed.

Source: 2015 Arkansas Code: Section 9-12-315

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