Under Arkansas divorce laws on adultery, a spouse’s affair is a recognized fault ground for divorce, but it has a smaller effect on the financial outcome than most people expect. The property and alimony statutes don’t list adultery as a factor, so its influence usually comes indirectly, through marital money spent on the affair or through a judge’s broad discretion to reach a fair result. Custody is decided on the child’s best interest, and infidelity by itself doesn’t move that needle.
Adultery as a Fault Ground
Arkansas allows a circuit court to grant a divorce when either spouse “committed adultery subsequent to the marriage.”1Justia. Arkansas Code 9-12-301 – Grounds for Divorce It sits alongside other fault grounds like habitual drunkenness for a year, cruel treatment endangering life, felony conviction, and general indignities that make the marriage intolerable.
You don’t have to file on fault to get out of the marriage. If you and your spouse have lived apart for eighteen continuous months without cohabiting, either of you can file a no-fault divorce regardless of who caused the split.1Justia. Arkansas Code 9-12-301 – Grounds for Divorce So why file on adultery? Two reasons come up most often: you don’t want to wait a year and a half, and you want the misconduct on the record when you argue over money.
Proving Adultery in Court
If you file on adultery grounds, the burden of proof is on you. Allegation isn’t evidence, and a judge needs enough to be convinced. The kinds of evidence courts typically accept:
- Text messages, emails, and social media messages showing the nature of the relationship
- Photographs or video that establish the relationship or place your spouse in compromising circumstances
- Financial records — credit card statements, bank withdrawals, Venmo transactions — showing spending on hotels, gifts, or trips with someone other than you
- Witness testimony from people who directly observed the affair or its evidence
- Circumstantial evidence: a pattern of facts that together point strongly toward an affair even without a single smoking-gun item
Credibility and admissibility both matter. An authenticated screenshot carries more weight than one that could have been edited, and bank records carry more weight than your handwritten list of suspicious charges. Circumstantial evidence can work, but it needs to form a coherent picture, not just raise suspicion.
Gathering Evidence Without Breaking the Law
Arkansas is a one-party consent state for recorded conversations. You can legally record a phone call or an in-person conversation as long as you’re part of it; you don’t need the other person’s permission.2Justia. Arkansas Code 5-60-120 – Interception and Recording Recording a conversation you’re not part of is a Class A misdemeanor.
Digital evidence is trickier. Federal law prohibits accessing someone’s password-protected email, social media, or cloud storage without authorization, and there’s no spousal exception under 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 hacking into accounts can be excluded from court, and it can expose you to criminal liability. Starting a divorce that way is exactly the wrong move.
Defenses If You’re the One Accused
Arkansas courts recognize traditional defenses that can defeat an adultery claim:
- Recrimination — both spouses committed adultery. When both engaged in the same conduct, the accusing spouse may be barred from using it as a fault ground.
- Condonation — your spouse knew about the affair and continued the marital relationship anyway. Forgiveness followed by resumed cohabitation can waive the right to use adultery as grounds.
- Collusion — the spouses arranged the allegation together to manufacture grounds. A court won’t grant a divorce based on a fabricated claim the parties agreed to.
Each defense needs its own proof. Condonation, for instance, requires showing your spouse actually learned about the affair and then voluntarily reconciled, not simply that they didn’t leave immediately.
How Adultery Affects Property Division
Arkansas starts from a presumption that marital property is split equally. A court can depart from a fifty-fifty division only if it finds equal division would be inequitable, and it must put its reasoning in writing.3Justia. Arkansas Code 9-12-315 – Division of Property – Definition The statutory factors include the 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. The affair itself, however painful, won’t directly shift the property split. Where adultery does move the numbers is when the cheating spouse spent marital money on the affair.
Marital Waste and Dissipation
If your spouse used joint funds to pay for hotel rooms, trips, gifts, or other expenses tied to the affair, that spending can be treated as dissipation of marital assets. Courts commonly 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 $30,000 went to the affair and the estate is otherwise $200,000, a court may effectively treat the estate as $230,000 and allocate $30,000 of the cheating spouse’s half to cover the waste.
To make a dissipation argument, you generally need to show the spending happened during the marriage’s breakdown and served no legitimate marital purpose. Hotel stays, jewelry for a paramour, airfare for someone who isn’t your spouse — that pattern fits. Once you establish the suspicious spending, the burden typically shifts to your spouse to prove the expenditures were for a marital purpose.
What Gets Divided
Only marital property is divided. Marital property is generally what was acquired during the marriage. Excluded from the split:3Justia. Arkansas Code 9-12-315 – Division of Property – Definition
- Anything owned before the marriage, including appreciation on that property
- Gifts and inheritances received at any point, plus income or growth from them
- Assets covered by a valid prenuptial or postnuptial agreement
- Workers’ compensation and personal injury payments for permanent disability or future medical expenses
Pre-marriage property can still be reassigned if keeping it with its original owner would be inequitable, but the court has to say why in writing.
How Adultery Affects 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.”4Justia. Arkansas Code 9-12-312 – Alimony – Child Support – Bond The statute doesn’t list adultery as a factor, but the language is open-ended enough that a judge can weigh the circumstances of the breakdown, including infidelity, when deciding what’s reasonable.
The clearest path for adultery to affect alimony runs through its financial consequences. If the affair drained savings, ran up debt, or forced the innocent spouse to cover expenses both partners used to share, a judge can fold that harm into the alimony amount and duration. The connection needs to be concrete. General unhappiness caused by the affair isn’t 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 payments if the recipient doesn’t follow through.4Justia. Arkansas Code 9-12-312 – Alimony – Child Support – Bond Either spouse can petition to modify alimony based on a significant change of circumstances.
When Alimony Ends
Alimony automatically terminates on any of the following:4Justia. Arkansas Code 9-12-312 – Alimony – Child Support – Bond
- Remarriage of the recipient
- Cohabitation, meaning the recipient begins living full-time with another person in an intimate relationship
- A child born to the recipient from a new relationship where a court orders that other person to pay support, or where the recipient is ordered to support someone who isn’t the payer’s descendant — both treated as the equivalent of remarriage
- Death of either the payer or the recipient
The cohabitation trigger is worth flagging. It doesn’t require remarriage; living full-time with a new partner in an intimate relationship is enough, and it applies whether you were the spouse who committed adultery or the one who filed on that ground.
Custody Is Decided Separately
Arkansas custody decisions focus on the child’s welfare and best interest. The statute explicitly directs courts to award custody “without regard to the sex of a parent but solely in accordance with the welfare and best interest of the child,” and joint custody is favored, with a rebuttable presumption that it’s in the child’s best interest.5Justia. Arkansas Code 9-13-101 – Award of Custody
The custody statute doesn’t mention adultery. An affair by itself won’t cost you custody or reduce your parenting time. What courts care about is how each parent relates to the child. If the affair involved conduct that directly touched the child — exposure to inappropriate situations, neglect during parenting time, instability at home — a judge can consider those facts. But that’s about parenting behavior, not the affair.
The court also considers which parent is more likely to encourage frequent and continuing contact with the other parent.5Justia. Arkansas Code 9-13-101 – Award of Custody Using the child as leverage in the adultery fight — badmouthing the other parent, withholding visitation, coaching the child — tends to backfire. Judges notice, and it counts against the parent doing it.
Attorney’s Fees and the Cost of Fault
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.6Justia. Arkansas Code 9-12-309 – Maintenance and Attorneys Fees – Interest That power isn’t tied to adultery or any other fault ground; it exists in every divorce case.
Adultery still tends to drive costs up. Proving an affair often means hiring a private investigator, retaining a forensic accountant 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 claim or hid evidence, a judge has discretion to shift more of those costs to the offending spouse. Fee awards look at both parties’ resources; they’re meant to keep the process fair rather than to punish, but the practical effect is that a contested adultery case can leave the cheating spouse paying more of the bill.