Ark. Code Ann. § 9-12-317 (2020)

Research References

Ark. L. Rev.

Acts of 1947: Partition of Estates by Entirety, 1 Ark. L. Rev. 220.

Tenancy by the Entirety — Divorce — A Peculiar Rule of Property in Arkansas, 22 Ark. L. Rev. 386.

U. Ark. Little Rock L.J.

Survey of Arkansas Law: Family Law, 6 U. Ark. Little Rock L.J. 159.

Harris, The Arkansas Marital Property Statute and the Arkansas Appellate Courts: Tiptoeing Together Through the Tulips, 7 U. Ark. Little Rock L.J. 1.

Arkansas Law Survey, Schneider, Decedents’ Estates, 7 U. Ark. Little Rock L.J. 205.

Survey — Family Law, 14 U. Ark. Little Rock L.J. 799.

Case Notes

Note. Subsection (c) of this section was added in 1997.

In General.

It is automatic that an estate by the entirety is changed to one in common unless the court decrees otherwise. Villanova v. Pollock, 264 Ark. 912, 576 S.W.2d 501 (1979).

Acts 1979, No. 705, which amended § 9-12-315, did not abolish this section; accordingly, § 9-12-315 does not apply to property owned as tenants by the entirety. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981) (decided prior to 1997 amendment, adding § 9-12-317(c)).

This section is the only authority for dividing estates by the entirety, and it provides for the equal division of property without regard to gender or fault. Askins v. Askins, 5 Ark. App. 64, 632 S.W.2d 249 (1982); Warren v. Warren, 11 Ark. App. 58, 665 S.W.2d 909 (1984) (decided prior to 1997 amendment, adding § 9-12-317(c)).

Where parties' residence is held as a tenancy by the entirety, that estate is automatically dissolved when the final decree is rendered, unless the chancellor specifically provided otherwise, pursuant to this section. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996).

Marital residence was owned by the husband and wife as tenants by the entirety, and thus, the circuit court had the option of disposing of the property in the manner required for the distribution of marital property, one-half to each party unless such a division would be inequitable; the circuit court adequately set forth its reasons for the unequal division of the property, and was not required to provide reasons specific to the marital residence, but rather to provide reasons for the unequal division when all the property is considered together, under subsection (c) of this section. Brown v. Brown, 373 Ark. 333, 284 S.W.3d 17 (2008), overruled in part, Moore v. Moore, 2016 Ark. 105, 486 S.W.3d 766 (2016).

Applicability.

This section applies only where a valid estate by the entirety has been created and has no application where one of the parties fraudulently causes his name to be added to the deed. Johnson v. Johnson, 237 Ark. 311, 372 S.W.2d 598 (1963).

Under this section this limited power of chancery courts to dissolve estates by the entirety is confined to cases involving a divorce. Bebout v. Bebout, 241 Ark. 291, 408 S.W.2d 480 (1966).

The division of property held as tenants by the entirety is governed by this section rather than § 9-12-315; this section is the only statutory authority for the division of tenancies by the entirety, and it provides for an equal division of such property without regard to gender or fault. Lyle v. Lyle, 15 Ark. App. 202, 691 S.W.2d 188 (1985) (decided prior to 1997 amendment, adding § 9-12-317(c)).

Adverse Possession.

Where an estate by the entirety could not be divided by the court prior to the enactment of this section, one of the owners could not claim adverse possession where the other owner quit living on the property following the divorce of the owners by the entirety. Hubbard v. Hubbard, 251 Ark. 465, 472 S.W.2d 937 (1971).

Death of Party.

Where action regarding property rights had been taken under submission and not finally decided by the chancellor when the death of the husband caused the action to abate, the nunc pro tunc divorce order rendered after the property aspects were submitted but before they were finally decided and before the death was of no effect. Pendergist v. Pendergist, 267 Ark. 1114, 593 S.W.2d 502 (1980), superseded by statute as stated in, Standridge v. Standridge, 298 Ark. 494, 769 S.W.2d 12 (1989).

Where a divorce proceeding was pending between couple at time of husband's death and, upon the rendition of a divorce in that action, their estate by the entirety would have dissolved automatically and they would have become tenants in common, court correctly held that husband's estate was entitled to his share of proceeds from sale of the property. Rucks v. Taylor, 10 Ark. App. 195, 662 S.W.2d 199 (1983), aff'd, 282 Ark. 200, 667 S.W.2d 365 (1984).

Disposition of Property.

Where husband and wife owned home as tenants by the entirety, the home was properly ordered sold with the proceeds to be divided equally upon granting of divorce to wife. Carr v. Carr, 226 Ark. 355, 289 S.W.2d 899 (1956) (decision prior to 1975 amendment).

Upon divorce, property held as a tenancy by the entirety is treated as a tenancy in common, and the court may place one of the parties in possession or may order the property sold and the proceeds divided; however, the court exceeded its authority by directing husband to give his divorced wife a quitclaim deed to his interest. Yancey v. Yancey, 234 Ark. 1046, 356 S.W.2d 649 (1962) (decision prior to 1975 amendment).

Where promissory notes were entireties property, it was error for the court to award the husband a greater share of the notes than the wife as a means of equalizing differences in value of real property awarded the parties. Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.2d 28 (1975) (decision prior to 1975 amendment).

Trial court erred when it awarded land, held in tenancy by the entirety to husband as his separate property upon the dissolution of their marriage; the court, in dividing the property, should have treated the husband and wife as tenants in common of that land. Askins v. Askins, 5 Ark. App. 64, 632 S.W.2d 249 (1982).

In divorce action, the chancellor's action in placing wife in possession of the parties' house was certainly authorized under this section and was not clearly against the preponderance of the evidence. Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983).

Where there was no evidence that wife, who advanced consideration for property purchased during marriage, expected it to be held in a resulting trust, the chancellor erred in awarding wife an equitable lien against husband's one-half interest in the property. Warren v. Warren, 11 Ark. App. 58, 665 S.W.2d 909 (1984).

Where the husband and wife acquired a one-half interest by deed as tenants by the entirety, the trial court, pursuant to this section, properly converted this one-half interest held as tenants by the entirety into two one-quarter interests held as tenants in common. Farris v. Farris, 287 Ark. 479, 700 S.W.2d 371 (1985).

A court has two available options for dealing affirmatively with entireties property in the event of the dissolution of the entireties estate by divorce: it may place one of the parties in possession of the property, or it may order the property sold and the proceeds divided equally. Awarding marital property held as tenancies by entireties solely to wife as part of her half-share of the marital property was error. Leonard v. Leonard, 22 Ark. App. 279, 739 S.W.2d 697 (1987) (decision under prior law).

The chancellor exceeded his authority in awarding real property, held as a tenancy by the entirety, to the plaintiff, and in ordering the defendant to execute a deed to the plaintiff. Bradford v. Bradford, 34 Ark. App. 247, 808 S.W.2d 794 (1991) (decision under prior law).

Where wife's inheritance was used to purchase stocks, bonds, and securities, the court was wrong to hold these were her separate property for division purposes where: (1) the parties filed joint income tax returns throughout the time that they were married, and that those returns listed the income and dividends from the investments as joint property; (2) the wife considered the property “all for one and one for all”; (3) it was a relatively long period of time that the separate funds were commingled in the joint account; and (4) marital funds derived from the husband's paycheck were used to meet the tax consequences stemming from ownership of the stocks, bonds, and securities at issue. McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991).

In a divorce action, the trial court erred by awarding the marital residence and its corresponding debt to the former wife, because under subsection (a) of this section the trial court was only authorized to order the property sold, give wife possession of the property until it would be sold at some future time, or leave the parties as tenants in common. Cole v. Cole, 82 Ark. App. 47, 110 S.W.3d 310 (2003) (decision under prior law).

Circuit court could dissolve a tenancy by the entirety and award a home to the wife even though their ownership of the home preceded the effective date of subsection (c) of this section, because they had lost title to the property for unpaid taxes pursuant to § 26-37-101, and the title was transferred back after the amendment's effective date. Freeman v. Freeman, 2013 Ark. App. 693, 430 S.W.3d 824 (2013).

Final Decree of Divorce.

The General Assembly intended “final decree of divorce” to refer to an absolute divorce from the bonds of matrimony for purposes of dissolving a tenancy by the entirety, by operation of law. Jones v. Earnest, 307 Ark. 294, 819 S.W.2d 280 (1991) (decision under prior law).

A divorce from bed and board does not constitute a final decree of divorce under subsection (a) of this section. Jones v. Earnest, 307 Ark. 294, 819 S.W.2d 280 (1991) (decision under prior law).

Upon divorce, the operation of law made ex-husband and ex-wife tenants in common as to their home; thus, upon ex-wife's creditors' attempt to attach a judgment lien, ex-husband was not barred from asserting the homestead exemption over ex-wife's undivided one-half-interest in the property. Parker v. Johnson, 368 Ark. 190, 244 S.W.3d 1 (2006).

Foreign Law.

Where divorce granted by court in another state, such court could order conveyance of lands held as tenancy by entireties. Phillips v. Phillips, 224 Ark. 225, 272 S.W.2d 433 (1954) (decision prior to 1975 amendment).

Where wife obtained valid divorce out of state, real property held by the couple in Arkansas as tenancy by the entirety should be converted to a tenancy in common and the proceeds of sale divided equally and husband was not entitled to claim the property as his homestead even though he occupied it as his home. Rodgers v. Rodgers, 271 Ark. 762, 611 S.W.2d 175 (1981).

Fraud.

Chancery court did not need to cause estate by entirety to be sold and the proceeds divided where estate brought about by fraud. Johnson v. Johnson, 237 Ark. 311, 372 S.W.2d 598 (1963) (decision prior to 1975 amendment).

This section has no application where one of the parties fraudulently causes his or her name to be added to the deed. Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981).

Presumption.

Once property, whether personal or real, is placed in the names of persons who are husband and wife, without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety and it takes clear and convincing evidence to overcome that presumption. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988); Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988); Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996).

Arkansas law presumed that a tenancy by the entirety is automatically dissolved upon the entry of a final decree of divorce under subsection (a) of this section; this presumption was strengthened by the circuit court's decree that, as a result of the divorce, it shall be “as though the marriage relation between (the debtors) had never existed.” Therefore, debtors' divorce extinguished the tenancy by the entirety and created a tenancy in common with respect to the Wilmar Property; the creation of a tenancy in common was further evidenced by the language of the property settlement agreement. In re White, 450 B.R. 866 (Bankr. E.D. Ark. 2011).

Property Settlement.

Property settlement resulting from a divorce decree wherein parties agreed to sell land held as tenants by the entirety and divide the proceeds did not dissolve the estate by the entireties and create tenancy in common. Killgo v. James, 236 Ark. 537, 367 S.W.2d 228 (1963) (decision prior to 1975 amendment).

Chancellor erred in his disposition of married couple's jointly owned four pieces of property held as tenants by the entirety by giving two lots to each spouse; the parties should hold all four lots as tenants in common. White v. White, 50 Ark. App. 240, 905 S.W.2d 485 (1995).

Remarriage.

Where wife was given possession of property held by the entireties by way of maintenance in divorce action and wife then remarried, the court held she was no longer entitled to exclusive possession of the estate by the entirety and chancellor had jurisdiction to change the order providing for maintenance. Perry v. Perry, 229 Ark. 202, 313 S.W.2d 851 (1958).

Rent.

Where the divorce decree provided title to the residence be held as a tenancy in common, the chancellor erred in holding the wife liable for rental fees from the time she lived in the house, after the contingency was met, requiring the house to be sold. Clifton v. Clifton, 34 Ark. App. 280, 810 S.W.2d 51 (1991).

Repairs.

Where divorced parties held property as tenants in common, and the chancellor did not find repairs by the wife added any significant value to the property, or that they were permanent in character such that the property would have an enhanced permanent value, the award of actual costs of the repairs to the wife was wrong since when the property was sold, the net proceeds were to be divided evenly between the parties. Clifton v. Clifton, 34 Ark. App. 280, 810 S.W.2d 51 (1991).

Retroactive Effect.

Court cannot change estate in entirety to estate in tenancy in common, if estate in entirety became vested prior to March 28, 1947. Jenkins v. Jenkins, 219 Ark. 219, 242 S.W.2d 124 (1951); Meadows v. Costoff, 221 Ark. 561, 254 S.W.2d 472 (1953); Anderson v. Walker, 228 Ark. 113, 306 S.W.2d 318 (1957); Perry v. Perry, 229 Ark. 202, 313 S.W.2d 851 (1958) (decisions prior to 1975 amendment).

Property acquired subsequent to March 28, 1947 may be sold on order of the court while property acquired prior thereto can only be sold by the mutual consent of the parties. Brimson v. Brimson, 227 Ark. 1045, 304 S.W.2d 935 (1957) (decision prior to 1975 amendment).

This section does not act retroactively and does not apply to entirety estates created prior to March 28, 1947. Poskey v. Poskey, 228 Ark. 1, 305 S.W.2d 326 (1957) (decision prior to 1975 amendment).

A holding that entirety property acquired before March 28, 1947 should be continued to be held and managed by the husband, granted a divorce on grounds of the wife's insanity, was proper where the husband was required to pay half the net income to the guardian of his divorced wife. Wood v. Wright, 238 Ark. 941, 386 S.W.2d 248 (1965) (decision prior to 1975 amendment).

Where property was purchased as an estate by the entirety, prior to March 28, 1947, the court in a subsequent divorce could not dissolve the estate by the entirety even if a division had been sought in the divorce proceeding. Hubbard v. Hubbard, 251 Ark. 465, 472 S.W.2d 937 (1971).

In partition action, chancellor held that the interest of the parties in real property had automatically been changed upon their divorce from tenants by the entirety to tenants in common even though property was bought prior to 1975 amendment, which made dissolution of estates by the entirety automatic. Padgett v. Haston, 279 Ark. 367, 651 S.W.2d 460 (1983).

Withdrawal of Funds.

Funds withdrawn from savings account held as tenancy by the entirety in contemplation of divorce should have been divided pursuant to this section. Likewise, funds withdrawn from money market account held as tenants by the entirety and deposited into wife's separate account should have been divided under this section. Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988) (decided prior to 1997 amendment, adding § 9-12-317(c)).

Where spouse withdrew funds from a joint account for living expenses, while the divorce was pending, and there was no finding of fraud or overreaching, the court could impose a constructive trust, order an accounting, or order an offset. Guinn v. Guinn, 35 Ark. App. 199, 816 S.W.2d 629 (1991).

Cited: Price v. Price, 217 Ark. 6, 228 S.W.2d 478 (1950); Young v. Young, 222 Ark. 827, 262 S.W.2d 914 (1953); Harbour v. Harbour, 229 Ark. 198, 313 S.W.2d 830 (1958); Brown v. Brown, 233 Ark. 422, 345 S.W.2d 27 (1961); McIntyre v. McIntyre, 241 Ark. 623, 410 S.W.2d 117 (1967); Brown v. Brown, 263 Ark. 189, 563 S.W.2d 444 (1978); May v. May, 267 Ark. 27, 589 S.W.2d 8 (1979); Ausburn v. Ausburn, 271 Ark. 330, 609 S.W.2d 14 (1980); Bramlett v. Bramlett, 5 Ark. App. 217, 636 S.W.2d 294 (1982); Cook v. Lobianco, 8 Ark. App. 60, 648 S.W.2d 808 (1983); Perrin v. Perrin, 9 Ark. App. 170, 656 S.W.2d 245 (1983); Luecke v. Mercantile Bank, 286 Ark. 304, 691 S.W.2d 843 (1985); Flucht v. Villareal, 28 Ark. App. 1, 770 S.W.2d 187 (1989); Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990).