Arkansas Divorce Laws on Adultery: Alimony, Property, Custody

Under Arkansas divorce laws on adultery, a spouse’s affair is a valid fault ground that can get you out of the eighteen-month separation wait, but it rarely swings property division, alimony, or custody on its own. Where it actually bites is when the cheating spouse spent marital money on the affair, or when the conduct around the affair affected the children. The Arkansas statutes that govern how a judge splits assets and sets alimony don’t list adultery as a factor at all.

Why File on Adultery Instead of Waiting It Out

Arkansas law lets a circuit court grant a divorce when either spouse “committed adultery subsequent to the marriage.”¹ It’s one of several fault grounds alongside felony conviction, habitual drunkenness for a year, cruel treatment endangering the other spouse’s life, and general indignities making the marriage intolerable.

You don’t have to file on fault. If you and your spouse have lived apart for eighteen continuous months without cohabiting, either of you can file no-fault regardless of who caused the separation.¹ The no-fault path avoids the evidence fight that comes with proving an affair, but it also means waiting a year and a half. People choose the adultery route for two practical reasons: to skip that waiting period, and to put the other spouse’s conduct on the record so it can be referenced in property and alimony arguments.

Proving Adultery

The spouse making the claim carries the burden. An allegation isn’t enough — a judge needs evidence strong enough to actually find that adultery occurred. The kinds of evidence courts typically accept include:

Text messages, emails, and social media messages showing the nature of the relationship
Photographs or video that establish the relationship or place the spouse in compromising circumstances
Credit card statements, bank withdrawals, or payment-app transactions showing spending on hotels, gifts, or trips with someone other than the spouse
Witness testimony from people who directly observed the affair or its evidence
Circumstantial evidence that forms a coherent pattern rather than isolated suspicion

Courts weigh both credibility and admissibility. An authenticated screenshot carries more weight than one that can’t be verified, and bank records carry more weight than a handwritten summary.

What You Can and Can’t Do to Gather Evidence

Arkansas is a one-party consent state for recording. You can legally record a phone call or in-person conversation as long as you are a party to it; you don’t need the other person’s knowledge or permission.² Recording a conversation you aren’t part of is a Class A misdemeanor.

Digital evidence is where people get themselves in trouble. Federal law prohibits accessing someone’s password-protected accounts — email, social media, cloud storage — without authorization, and there is no spousal exception to the Computer Fraud and Abuse Act or the Stored Communications Act. Being allowed to use your spouse’s computer doesn’t mean you’re authorized to open their email. Evidence obtained by breaking into accounts can be excluded, and it can expose you to criminal liability on top of the divorce case.

If You’re the One Being Accused

Arkansas courts recognize several traditional defenses to an adultery claim:

Recrimination: both spouses committed adultery, which can bar the accusing spouse from using it as a fault ground
Condonation: the accusing spouse knew about the affair and continued the marital relationship anyway, particularly where they resumed cohabitation after learning of it
Collusion: both spouses arranged the allegation to manufacture grounds for divorce

Each defense needs its own proof. Condonation, for example, requires evidence that your spouse actually learned of the affair and then voluntarily reconciled, not simply that they didn’t move out the same week.

Property Division

Arkansas starts with a presumption that marital property is split equally. A court can depart from fifty-fifty only if it finds an equal division would be inequitable, and it must put its reasoning in writing.³ The statutory factors include length of the marriage, each spouse’s income and employability, contributions to acquiring or preserving property (including homemaking), and tax consequences.

Adultery isn’t on that list. The statute doesn’t mention it. So the affair itself, however painful, doesn’t tilt the division. What does move the needle is money spent on the affair.

Marital Waste and Dissipation

If your spouse used joint funds for hotel rooms, trips, gifts, or other expenses tied to an affair, that spending can be treated as dissipation of marital assets. Courts generally handle this by adding the wasted amount back into the marital estate on paper and then counting it against the offending spouse’s share. If your spouse spent $30,000 on an affair and the marital estate is $200,000, the court may treat the estate as $230,000 and allocate $30,000 of the offending spouse’s half to cover the waste.

To make the argument, you need to show the spending happened during the marriage’s breakdown and served no legitimate marital purpose. Hotel stays, jewelry for a paramour, and airfare for someone who isn’t your spouse all fit. Once you establish suspicious spending, the burden shifts to your spouse to prove the money went to a marital purpose.

Only marital property gets divided. Property owned before the marriage, gifts and inheritances (plus any income or growth from them), assets covered by a valid pre- or postnuptial agreement, and workers’ comp or personal injury benefits for permanent disability or future medical expenses are all excluded.³ A court can still reassign pre-marriage property if keeping it with the original owner would be inequitable, but again, it has to state its reasons in writing.

Alimony

The Arkansas alimony statute gives courts broad discretion to award alimony “as reasonable from the circumstances of the parties and the nature of the case.”⁴ Like the property statute, it doesn’t list adultery. But the language is open-ended, so a judge can weigh circumstances surrounding the breakdown of the marriage, including infidelity, in deciding what’s reasonable.

The clearest path for adultery to affect alimony runs through finances. If an affair drained marital savings, increased debt, or forced the innocent spouse to cover expenses that both partners used to share, a judge can factor that financial harm into the amount and duration. The connection has to be concrete; general unhappiness caused by the affair is not a financial argument.

Arkansas recognizes rehabilitative alimony, which provides fixed payments for a set period to help the receiving spouse become self-supporting. The court can require a rehabilitation plan and can modify or end the payments if the recipient doesn’t follow through.⁴ Either spouse can petition to modify alimony based on a significant change of circumstances.

When Alimony Ends

Alimony in Arkansas automatically terminates when any of these events occur:⁴

The recipient remarries
The recipient begins living full-time with another person in an intimate relationship
The recipient has a child with someone new and a court orders that person to pay support, or the recipient is ordered to support someone who is not the payer’s descendant — both treated as the equivalent of remarriage
Either the payer or recipient dies

The cohabitation trigger is the one people miss. Living full-time with a new partner in an intimate relationship ends alimony even without a wedding. That matters on both sides of an adultery case: if you were awarded alimony and move in with the person your spouse accused you of seeing, the payments stop.

Custody

Arkansas custody decisions turn on the child’s welfare and best interest. The statute explicitly says custody must be awarded “without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child.”⁵ Joint custody is favored, and there’s a rebuttable presumption that joint custody is in the child’s best interest.

Adultery isn’t in the custody statute. An affair by itself won’t cost you custody or reduce your parenting time. What a judge will look at is how each parent relates to the child. If the affair involved behavior that directly affected the child — exposure to inappropriate situations, neglect during parenting time, or instability in the home — those facts can come in. The affair as a moral matter will not.

The court also looks at which parent is more likely to encourage frequent and continuing contact with the other parent.⁵ Using the child as a weapon in the adultery dispute — badmouthing the other parent, withholding visitation, or coaching the child to take sides — tends to backfire. Courts notice, and it works against the parent doing it.

Attorney’s Fees When Adultery Drives Up Costs

Arkansas courts can order either spouse to pay the other’s attorney’s fees, expert witness fees, and court costs, both during the proceedings and in the final decree.⁶ This power doesn’t depend on adultery or any other fault ground.

Adultery does push costs up, though. Proving an affair often means hiring a private investigator, bringing in forensic accountants to trace hidden spending, and spending more time in depositions and hearings. If the innocent spouse ran up significant costs because the other side contested the adultery claim or concealed evidence, a judge has discretion to shift more of those costs. Fee awards also take both parties’ finances into account, so the goal is a fair process rather than punishment.

1
Justia. Arkansas Code 9-12-301 – Grounds for Divorce
2
Justia. Arkansas Code 5-60-120 – Interception and Recording
3
Justia. Arkansas Code 9-12-315 – Division of Property – Definition
4
Justia. Arkansas Code 9-12-312 – Alimony – Child Support – Bond
5
Justia. Arkansas Code 9-13-101 – Award of Custody
6
Justia. Arkansas Code 9-12-309 – Maintenance and Attorneys Fees – Interest