More and more people own retirement accounts that are connected in some way to IRAs.  It’s also true that nearly half of the married people in the country used to be married to someone else.  If you have kids from a previous marriage, you might be nervous about your wife and those kids fighting over your retirement account when you’re gone.

Many people phrase the problem this way: “I want my spouse to have access to my IRA account, but I am fearful my children could end up getting cut out if I name my spouse as the primary beneficiary of my IRA.  After all, the relationship between my children and my spouse has never been great.”  

There’s good news for people in this situation.  Recently, lawyers have developed a kind of trust that is designed to fix this problem.  It’s called a Standalone Retirement Trust, or SRT for short.  

How does it work?

Instead of naming your spouse as the beneficiary of your IRA, you name the SRT as beneficiary.  That means, when you die, your retirement account pays out to the trust. In the terms of the SRT, you can map out how you want the funds in your retirement account to get distributed.  So, instead of naming either your spouse or your kids as the primary beneficiary, and hoping that they share, you can name the SRT as the beneficiary and outline how much everyone gets.

Why do I need an SRT if my second wife gets along with my kids from my other marriage?

Your kids and your second spouse may get along great now.  You have no idea what’s going to happen after you pass away and money is involved. Also, what happens if your spouse’s mental health declines as they age?  Do you want to worry about your spouse changing the beneficiary on your IRA after your gone? Why worry about it? Plan instead.

SRT planning can be complex.  We know how to handle your situation.  Please give us a chance to give you peace of mind and call us today or make an appointment with an estate planning attorney here.

In some ways, dividing the marital property during an Arkansas divorce is like reading the gas meter. You had a certain number before you started, so you just measure how much the meter has moved and that’s what’s in the marital estate. Short version: stuff you owned before marriage is yours.  Stuff you got while you were married is marital property.

It is pretty straightforward to know what day the meter started running: The date of marriage.

The second question is figuring out whether specific types of property qualify as marital property under Arkansas law. If not, they get excluded, which means they don’t move the meter. Things like an inheritance, gifts from people outside the marriage, and businesses owned before getting married don’t move the meter. These are obviously the sort of issues that Arkansas divorce lawyers spend their time fighting about.

The third question is when the meter should stop running. Because most divorces take several months and many take multiple years, many people assume that one stops accumulating marital property after the divorce is filed.

The reality is that all the parties’ earnings that are not otherwise excluded (inheritance, etc.) continue to increase the marital estate until the divorce is finalized. If the parties file for divorce on January 1 and the stock market goes up by 20% that year, the marital estate will include the increase and the other spouse will get half of the windfall. The same applies if the parties file for divorce and something were to cause the marital estate to lose a significant amount of value: the valuation comes at the date of divorce.

If you’re thinking about getting divorced, but you’re worried about your spouse getting your stuff in the divorce, don’t worry.  Give us a call instead or schedule an appointment with a family law attorney here.  We have a ton of experience with property division in divorce.  Let us figure it out for you.

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The very short answer to this is: it’s complicated.  Let us figure it out for you.

If you’re supposed to register, but you just don’t do it because you don’t know if you have to, you can still be prosecuted for not registering.  Don’t chance it. Let us look into your case and tell you whether you have to register.

How do I know if I have to register?

There is a specific statute in Arkansas that requires sex offenders moving to Arkansas to register. If you had to be registered in the place you’re moving from, you have to register here within seven days of moving.  The trick is that the law about this in other places can change a lot, and you likely should hire an attorney to look into what the current requirements are in the state you’re moving from.

Here’s why this is important:

This is just an example of what happened in one case, and how we fixed it:

  1. The client didn’t have to register when he was convicted in his home state.
  2. The client moved to a second state that required registration for that conviction.
  3. The client then moved to a third state that didn’t require registration for the conviction.
  4. When the client moved to Arkansas, they were told they’d have to register here if the planned to stay.
  5. They hired us and didn’t have to register in Arkansas.

Other Issues:

There are certain crimes called “target offenses” that, if you were convicted of in another state, require you to register if you’re going to live here. There’s no specific list of what all these “target offenses” are, though.  Some of them are in a list. The legislature frequently changes the list. If something is the “substantial equivalent” of one of the target offenses, you have to register. We can help you figure out if the offense you were convicted of is a “target offense.”

There are also issues regarding where you actually reside.  How long you plan to stay, and whether you plan to stay permanently affects where your “residence” is. It includes other things like where you work, attend school, or receive employment training.

“Aggravated sex offenses” require lifetime registration.  We can help you find out if the offense you were convicted of is an “aggravated sex offense.”

If you’re worried about any of these issues, schedule an appointment here or call to speak with a criminal defense attorney.  You need to think about these issues BEFORE moving. Our attorneys have successfully gotten people off the Arkansas Sex Offender Registry, fought over enforcement of registration laws, reversed denial of sex offender parole plans and advised clients moving to Arkansas.

Other interesting blogs on the topic:

Do you want to be removed from the Arkansas Sex Offender Registry?

What does it cost to be removed from the Arkansas Sex Offender Registry?

This is question everyone asks and for good reason. Everyone is worried about keeping their property and we don’t blame them. You worked hard for it. Most states require you to use state exemptions when you file for bankruptcy. Arkansas allows you to choose between Arkansas or Federal exemptions. However, you must pick one system or the other (you cannot mix and match).

 

What is Equity in Bankruptcy?

All these numbers relate to equity – the amount your property is worth minus the amount you owe on that property. Examples – 1) Your car is worth $12,000 on Kelly Blue Book in good condition and you owe $15,000, then you have $0.00 in bankruptcy; 2) Your house is worth $125,000 and you owe $105,000, then you have $20,000 in equity.

If a debt is secured by property, such as a car or home, and you are current on the payments and the equity is covered by your exemptions, you can keep making payments on the loan and keep this property through the bankruptcy. Generally, if you have non-exempt property, you must pay the trustee the value of the non-exempt property in order to keep the property.

Federal Exemptions:

Common Exemptions (you can double if you’re filing with your spouse and the property is owned jointly). All code references are to 11 U.S.C. (Title 11 of the United States Code).

Homestead

522(d)(1), (5) – Real property, including mobile homes and co-ops, or burial plots up to $23,675. Unused portion of homestead, up to $11,850 may be used for any other property.

Personal Property

522(d)(2) – Motor vehicle up to $3,775.

522(d)(3) – Animals, crops, clothing, appliances and furnishings, books, household goods, and musical instruments up to $600 per item, and up to $12,625 total.

522(d)(4) – Jewelry up to $1,600.

522(d)(9) – Health aids.

522(d)(11)(B) – Wrongful death recovery for person you depended upon.

522(d)(11)(D) – Personal injury recovery up to $23,675 except for pain and suffering or for pecuniary loss.

522(d)(11)(E) – Lost earnings payments.

Pensions

522(b)(3)(C) – Tax exempt retirement accounts (including 401(k)s, 403(b)s, profit-sharing and money purchase plans, SEP and SIMPLE IRAs, and defined benefit plans).

522(b)(3)(C)(n) – IRAS and Roth IRAs to $1,283,025.

Public Benefits

522(d)(10)(A) – Public assistance, Social Security, Veteran’s benefits, Unemployment Compensation.

522(d)(11)(A) – Crime victim’s compensation.

Tools of Trade

522(d)(6) – Implements, books and tools of trade, up to $2,375.

Alimony and Child Support

522(d)(10)(D) – Alimony and child support needed for support.

Insurance

522(d)(7) – Unmatured life insurance policy except credit insurance.

522(d)(8) – Life insurance policy with loan value up to $12,625.

522(d)(10)( C ) – Disability, unemployment or illness benefits.

522(d)(11)( C ) – Life insurance payments for a person you depended on, which you need for support.

Wildcard

522(d)(5) – $1,250 of any property, and unused portion of homestead up to $11,850.

Arkansas Exemptions:

Here are the more common exemptions available under Arkansas law. Spouses filing a joint bankruptcy in Arkansas can double the exemption amount if they both own the property (except for the homestead exemption). (References are to the Arkansas Code Annotated or the Arkansas Constitution.)

Homestead or residential property

Choose 1 or 2, but not both.

  1. Unlimited amount of equity in 80 rural acres or one-quarter urban acre. If the land isn’t worth $2,500, you can increase the acreage up to 160 rural acres and one urban acre, up to a total equity value of $2,500 in value.
  2. Real or personal property used as a residence up to $800 if single or $1,250 if married. (Ark. Const. Art. 9 §§ 3, 4, 5, 6; Ark. Code Ann. §§ 16-66-210, 212, 218)

Personal property

All clothing; a single person who is not the head of the family can keep $200 worth of any other type of property. The amount increases up to $500 for a married person or head of the family. (Ark. Const. Art. 9 §§ 1 and 2, Ark. Code Ann. § 16-66-218); motor vehicle up to $1,200 (Ark. Code Ann. § 16-66-218); tools needed in your trade or profession up to $750 (Ark. Code Ann. § 16-66-218); wedding bands (Ark. Code Ann. §§ 16-66-218, 219); life, health, and disability insurance payments (Ark. Code Ann. § 16-66-209); pension or retirement account up to $20,000 (Ark. Code Ann. § 16-66-220). (More exemptions could be available for retirement benefits. See Filing Bankruptcy and Retirement Accounts.)

Public benefits

Workers’ compensation (Ark. Code Ann. § 11-9-110); unemployment compensation (Ark. Code Ann. § 11-10-109); crime victims’ compensation (Ark. Code Ann. § 16-90-716).

This is not a complete list, additional exemptions exist. Also, Arkansas updates exemption amounts periodically. If this is a little confusing, feel free to call, 501.372.1212, or set up a free consultation by clicking here.

Can nurses lose their license if they refuse to drug test?

Lots of nurses want to know if they’ll lose their licenses for refusing to take a drug test. The short answer is yes, you can lose your license if you refuse to take a requested drug test.

However, it is a little more complicated than that.  If a nurse has been asked to take a drug test by their employer, refusing is a violation of the nurse practice act. The employer will likely report the refusal to the Arkansas State Board of Nursing.  This will lead to an investigation into the nurse’s work history.

If a nurse refuses to take a drug test, the Board will send a letter to the nurse with a request for the nurse to surrender their license for a 1-year period.

Should I surrender my Nursing License?

In most cases, the nurse should not surrender their license.  Especially in cases where the only violation of the nurse practice act is the refusal of a drug test.  When refusal to take a drug test is the basis for the violation, a consent agreement with the board can likely be reached where the nurse does not lose their license. Instead, they are placed on probation and will have to comply with certain rules.  

What about Consent Agreements?

The down side to entering a consent agreement is the nurse will have their license flagged with a violation.  However, as of November 2018, the Arkansas State Board of Nursing has adopted a new system. The Alternative to Discipline Act allows a nurse to enter a probationary type period and complete certain tasks assigned to them by the Board in exchange for not having their license flagged.   One of the requirements to be eligible for the Alternative to Discipline Program is the nurse must self-report the violation. There are other requirements that go along with self-reporting, which is why it is important to contact a knowledgeable attorney as soon as any potential issues with your nursing license appear.

It should not be a surprise to anyone that one of the most important concerns of those considering filing for bankruptcy is privacy. It is true that bankruptcy is public information. Like most court cases, they are public record, you can view court records and sometimes newspapers publish notice of legal filings. Even though Bankruptcies are a public record they are actually harder to find for the public than most cases because you have to pay to access them.

 

How can someone find my bankruptcy case?

Bankruptcies are filed with the bankruptcy court. If someone wanted to find a bankruptcy case, there are 3 ways:

1) Online through pacer.gov/ – you have to sign up for an account and enter payment information. You must pay $0.10 for every pageview (screen you look at) and $0.10 for every page of a document you download (it maxes out at $3.00 per document). Just to let you know, a bankruptcy petition is normally more than 30 pages;

2) At the courthouse – you can visit the bankruptcy courthouse and pay $0.10 per page for copies;

3) By telephone – you can call and get limited case information by phone.

 

Will anyone find my bankruptcy case?

Probably not. It is unlikely that the general public, like your friends and neighbors, are going to find out about your bankruptcy filing. The people you will talk to directly about your bankruptcy are your attorney and the people who work for the courts. Neither of these parties are going to post anything about your bankruptcy filing in social media or in the newspaper. It actually would take a lot of effort for the average person to find out about your bankruptcy filing if they wanted to see it. The truth is the only people that know how to navigate the court system are generally lawyers or people that work in the court system. It would take an average Arkansan quite a bit of work to find out about your case.

 

Will my present employer find out I filed bankruptcy?

Maybe, maybe not. Below I will discuss who gets notice of a bankruptcy case. Normally, your employer only gets notice if you choose to make bankruptcy payments by employer wage withholding. If you want to do so, then you can. That being said, you do not have to pay by employer withholding. You can pay by phone, online, or mailing in a check. If you do not pay by wage withholding, then your employer will most likely not find out. Sometimes, filing bankruptcy may even prevent your employer from finding out you are behind on bills. Creditors may try to reach you at work, but once you file, the automatic stay goes in the place and creditors cannot try to contact you.

 

Will my future employer find out I filed bankruptcy?

Some employers run a credit check on their employees. A bankruptcy will be on your credit report for 7 years (Chapter 13) or 10 years (Chapter 7) from the date you file bankruptcy. Everyone is different, but if you are thinking about bankruptcy, then you probably do not have a great credit score. If your future employer is going to run your credit, the score will probably be more important than the fact you have a bankruptcy on there. Some people actually have their credit go up after filing bankruptcy. I do not know if this is true, but I have heard people say so. After you file bankruptcy and get caught up on your debt, you can typically improve your score by using credit wisely. If you are behind on bills and unable to keep up, then your credit might be bad for years to come. With bankruptcy, you get a fresh start and a chance to rebuild your credit.

 

Who gets notice of a bankruptcy case?

The bankruptcy petition lists creditors who are specifically notified of the bankruptcy filing. The contact information provided on the bankruptcy petition for each creditor is used to give notice directly to any of your creditors. The only other communication from the court goes directly to you or your bankruptcy attorney.

The bottom line? Privacy is a natural concern if you’re thinking of filing bankruptcy. But, your own peace of mind in getting your finances in order will be worth the low risk of others finding out. You are not alone – on average between 750,000 and 1,000,000 – people file bankruptcy each year.

If this is a little confusing feel free to call, 501.372.1212, or set up a free consultation by clicking here.

Houses are a huge pain in the butt during a divorce.

Property division in an Arkansas divorce is (Lord willing) a relatively simple problem. You just figure out what something is worth and then cut it in half. A house can make both of those tasks really tough.

What is a house worth? You can ask an Arkansas realtor, but that depends on whether he is buying or selling. Don’t ask Zillow, because you’ll think your house is actually worth twice what it really is. And don’t ask an appraiser because you’ll spend half your equity on getting an appraisal.

Side-note: If you’ve done some estate planning, make sure you’ve put your home into the trust. More about that here.

However, it doesn’t matter what your house is worth if no one wants to buy it.

Then there are the memories you have in a house. How much are your kids’ first steps worth? How much is your last Christmas with your grandfather worth? What about the family dog buried under the oak tree out back?

Even if you have no emotional ties to a home, it’s not a straightforward process to figure out what it’s worth. Once you factor in the memories, it’s nearly impossible.

If you have lived in your home for decades, you may be concerned about how to keep it if you or your spouse have to go to the nursing home. More about that here.

Assuming that you’ve got a value on it, it’s not too difficult to figure out the equity. But unfortunately, a house is not like a bank account. You can’t just carve up a home like you can a bank account. If you cut 7% off a home, you don’t have two pieces of property that add up to the total value of the home. Instead, you just have a big mess.

Getting the money out of a home (assuming there is equity) generally requires either: (1) that the parties sell the home, (2) one person has enough money to buy the other out, or (3) one person can do a cash-out refinance.

Each of these options requires a little luck and bunch of effort. Probably some money, too. Depending on the condition of your home and the area, selling it may be easy or impossible. Refinancing a home is not difficult, but it is expensive and you have to have good credit. Assuming that you purchased the home with your spouse’s income, it may be tough to refinance in your name alone.

A home is often the one aspect of a divorce that is not that difficult to agree on but is difficult to make happen. Usually, it is obvious who wants to keep the house (or, in some instances, obvious that neither party can keep the house.) It may simply be impossible.

If you own your home and anticipate or are going through a divorce, contact us. A good divorce lawyer can help you figure out how to divide your real estate. He will also have connections with competent realtors, mortgage lenders, and remodeling experts. It is especially something to think about if you are going through a divorce and have rental property.

It’s one of the most commonly asked student loan questions: Can you discharge your student loans in bankruptcy? The short answer: normally no, student loans are not dischargeable. Student loans are now the second highest consumer debt category – behind mortgages, but ahead of credit card debt. Unlike other consumer debt such as credit card and mortgage debt, however, student loans traditionally cannot be discharged in bankruptcy.

 

Why are student loans different?

The rationale for the student loan “no bankruptcy” exception likely grew from a concern that student loan borrowers could take advantage of bankruptcy laws, borrow a bunch of debt, earn a degree and then file for bankruptcy. In some circumstances, student loans can be discharged, but you have to file a separate lawsuit. This lawsuit must be filed with the bankruptcy court. To be successful at discharging your student loans, you must prove to a judge that being forced to repay your student loans poses what the U.S. Bankruptcy Code calls an “undue hardship.”

The courts of the Eighth Circuit (the circuit Arkansas is in), look at the debtor’s individual circumstances (they call it a totality of the circumstances test) to determine whether excluding student loans from discharge would impose an undue hardship on the debtor.  The test includes: “(1) the debtor’s past, present, and reasonably reliable future financial resources; (2) the debtor’s reasonable and necessary living expenses; and (3) any other relevant facts and circumstances.”

 

How do I deal with my student loans?

When dealing with student loans and bankruptcy there are a couple of things to think about. In Chapter 7, they will not likely get discharged and dealing with your student loans will remain the same. In Chapter 13, you may be able to file and make the majority of your payment go to student loans while your other creditors (maybe credit card and medical bills, do not get paid as much). Also, you may file be able to file Chapter 13 and pay your other creditors (house and car) and push your student loans for another 5 years.

 

How to deal with Student Loans outside of bankruptcy?

Your best option is probably one of the following income-based repayment options:

  1. Revised Pay As You Earn Repayment Plan (REPAYE Plan)
  2. Pay As You Earn Repayment Plan (PAYE Plan)
  3. Income-Based Repayment Plan (IBR Plan)
  4. Income-Contingent Repayment Plan (ICR Plan)

Sometimes you can get a payment of $0.00 per month in an income-based repayment program.

 

Debts That Are Not Discharged in Bankruptcy:

Some debts are never discharged in bankruptcy. Some are not discharged unless you can successfully argue that they should be. Some are not discharged if a creditor successfully argues that they should not be.  

 

Debts That Are Never Discharged:

You will continue to owe these debts after your bankruptcy case is over:

  • child support and alimony;
  • fines, penalties, and restitution you owe for breaking the law;
  • certain tax debts; and
  • debts arising out of someone’s death or injury as a result of your intoxicated driving.

If you file under Chapter 7, you will also continue to owe condo, co-op, and HOA fees; debts for loans from a retirement plan; and debts you couldn’t discharge under a previous bankruptcy.

 

Debts That Are Not Discharged Unless You Prove an Exception Applies:

Certain debts will be discharged only if you ask the court to rule that it should be. In other words, the default is that these debts are not discharged unless you convince the court otherwise. These are:

  • student loans; and
  • regular income tax debt.

 

Debts That Are Discharged Unless A Creditor Successfully Objects

Some debts are discharged unless a creditor comes forward and convinces the court that they should not be. These debts include:

  • debts arising from your fraud (purchasing items with no intent to pay it back, i.e. using your credit card right before you file). This includes recent debts for luxuries (items not needed for support or maintenance or you or your dependents) of more than $675 (as of April 2016 – changing April 2019) or cash advances of more than $950 (as of April 2016 – changing April 2019) within a certain period of time before you file;
  • debts arising from your willful and malicious acts;
  • debts arising from your embezzlement, larceny, or breach of fiduciary duty; and  
  • debts or creditors you don’t list on your bankruptcy papers.  

If this is a little confusing, feel free to call, 501.372.1212, or set up a free consultation by clicking here.

Registered sex offenders face many challenges, but they do not give up the right to be free from harassment.  Sex offenders deal with social isolation, property damage, housing restrictions, and decreased job opportunities. However, the right to live without harassment belongs to everyone.

Stop Harassment

Keeping records is the first step to end the harassment.

  1. Note the time, date and type of harassment.
  2. Is it the same person or group of people?
  3. Is it the same behavior (making false complaints, police reports or threats of violence)?
  4. If you call the police, record the officers’ names and request a copy of any incident reports.

If further action is required, your detailed records provide important documentation.  For example, specific facts strengthen an attorney letter, lawsuit, No Contact Order or an Order of Protection.  Most importantly, a detailed log may convince a court that the harassment should be stopped.   (How Do I Keep Someone Away From Me?)

Fortunately, Arkansas law provides criminal penalties for activities sex offenders often deal with:

  1. Threats
  2. offensive physical contact
  3. repeated public insults
  4. certain forms of surveillance and
  5. destruction of property.

See Arkansas Code § 5-71-208 HARASSMENT and § 5-38-204  CRIMINAL MISCHIEF IN THE 2ND DEGREE

Contact The Police or an Attorney

Arkansas law addresses threats without regard to the source or target.  So, take threats seriously and bring them to the attention of law enforcement.

Certainly, registering as a sex offender does not mean you gave up your right to protection. If you receive threats or false complaints, you should bring this to the attention of local law enforcement.

Police departments are overloaded with work.  False reports add to that burden. Besides, no one wants their time wasted, and the police are no different. If the harassment comes from a specific source, show the police your records.  This could lead to a warning, and in serious cases, charges for filing false police reports. 

On the other hand, if the harassment comes from law enforcement, an attorney may be necessary. If you have reservations about contacting law enforcement, consider consulting an attorney with experience in sex offender registry issues.

File For Removal From the Sex Offender Registry

If you are eligible, removing your name from the Sex Offender Registry can resolve harassment issues quickly and effectively.

If you or someone you know is being harassed or may be eligible for removal from the Arkansas Sex Offender Registry, please contact Wilson & Haubert today.

Call us at 501 372-1212 or schedule a consultation by clicking here.

Other interesting blawgs on this topic:

Sex Offender Deregistration

What does it cost to be removed from the Arkansas Sex Offender Registry?

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