Divorce Basics — What Are the Two Types of Divorce

It’s common knowledge that a significant percentage of marriages end in divorce in the United States. As laws limiting the availability of divorce have been amended and professional opportunities available to women have expanded, there is little reason for remaining in an unhappy or unhealthy marriage. Life is too short to be miserable.

This article will explain how divorce works broadly, including the grounds generally available. Divorce is governed by state law; for this reason, I cannot outline every possible permissible reason for obtaining a divorce in every state. Because I am licensed in both Texas and Arkansas, this article will provide some specific information for both of these states.

Preliminary Note re: Marriage

Before addressing divorce, it must be said that only married people must be divorced in order to terminate their relationship. Marriages come in two varieties: ceremonial and common law. Ceremonial marriages are what most people think of when they imagine a marriage — a ceremony, whether at a church or in front of a judge, who recites specific words and has the potential spouses assent to being joined together as one and a marriage license is filed with the state.

Common law marriages, however, are more complicated. Only some states allow for residents to enter into common law marriages — such as Texas but not Arkansas.[1] Generally, common law marriages requires the couple to 1) agree that they are married, 2) cohabitate, and 3) represent to third parties that they are married, such as neighbors and family.

The complicated part arises in cities such as Texarkana where residents regularly cross state lines. While Arkansas does not recognize common law marriages entered into within the state, it does — and must under the Full Faith & Credit Clause of the United States Constitution — recognize valid common law marriages entered into in states that allow for them.[2] For example, a couple could meet the requirements for common law marriage while living in Texarkana, Texas; if they move to Texarkana, Arkansas, they are still married and must divorce if they wish to dissolve the marriage.

As one of my law school professors once said, you cannot be “a little bit married.” If two people enter into a common law marriage, they are married. The only way out is through divorce.

Divorce: Fault & No-Fault Grounds

Divorce generally only comes in two varieties: fault & no-fault.

  • Fault-based divorces were the only choice until 1969. The grounds for a fault-based divorce vary from state-to-state but the following are commonly included: adultery, abandonment, abuse, conviction of a felony, drug or alcohol addiction, and impotency/infertility at the time of marriages.

Several states have abolished fault-based divorces altogether but both Texas[3] and Arkansas[4] still recognize them. While fault-based divorces are more complicated and consequently require longer in court, there are potential advantages to choosing a no-fault divorce, including but not limited to: child custody, property distribution (including alimony), and public vindication.

  • No-fault divorces, in contrast, require no wrongdoing by either party. Most states have some form of no-fault divorce available but the specific requirements vary greatly from state-to-state.
    • Arkansas: To obtain a divorce in Arkansas, the married couple must be physically separated for eighteen continuous months.[5]
    • Texas: In contrast, Texans must prove that the marriage has become “insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”[6]

Are you considering dissolving your marriage and moving on to your next adventure? Feel free to reach out to us to learn more about your rights and what to expect from the divorce process. We can be reached by phone at (903) 221.9180 and by email at matt@matthewlewislaw.com.

[1] Ark. Code. Ann. § 9-11-201.

[2] Ark. Code. Ann. § 9-11-107.

[3] Tex. Family Code §§ 6.002–6.005

[4] Ark. Code. Ann. § 9-11-301.

[5] Id. at (b)(5).

[6] Tex. Family Code § 6.001.

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