Many people gift property to others to qualify for Medicaid only to find out that they’re still not qualified. Usually this situation is caused by Uncompensated Transfers.  These transfers trigger “penalty periods.” So, what is an Uncompensated Transfer? How do such transfers incur a penalty? What is the Transfer Penalty and how does it work? Here are some useful definitions.

Uncompensated Transfer:  This is the transfer of assets (cash, cars, real estate etc.) where less than equal value was received for the exchange.  That means you gave something to someone without getting paid the full value of the thing you gave away. For example, you gave your ’67 Mustang to your son for $10.  If you gave away anything valuable and didn’t get equal value back in exchange, that is an Uncompensated Transfer.

Look Back Period:  There is a time limit on looking at Uncompensated Transfers.  The state may only look back in time for a period of 60 months.  If the Uncompensated Transfer occurred more than 60 months prior to an application for Medicaid, then the transfer is not a penalizing transfer.  If the Uncompensated Transfer occurred within 60 months of applying for Medicaid, then the transfer gets you a Penalty Period.

Penalty Period:  This is the time period where the Medicaid applicant is disqualified from Medicaid because of the Uncompensated Transfer.  In other words, the applicant is otherwise qualified for Medicaid, but because of the Uncompensated Transfer, they are disqualified for a period of time.

Penalty Divisor:  This is a number set by the state which is used to determine the Penalty Period.  It is based upon the current average semi-private bed rate for nursing homes in your state.  It is adjusted once a year in order to stay accurate. In Arkansas as of the date of this article, the Penalty Divisor is $5,493.  

Calculating the Penalty Period:  The Penalty Period in Arkansas is determined by the following formula:

Amount of transfer (divided by) Penalty Divisor = Penalty Period.

Example:  If a person made Uncompensated Transfers totaling $100,000 during the 5 years prior to applying for Medicaid, those Uncompensated Transfers would result in a Penalty Period of 18.2 months

$100,000 (divided by $5,493) = 18.2 month Penalty Period.

Penalty Period Start Date:  The Penalty Period incurred for Uncompensated Transfers does not begin to run until:

1, The applicant is institutionalized (in a nursing home)

  1. An application has been submitted
  2. The applicant is Resource Eligible:  meaning the applicant had less than $2,000 in resources on the 1st day of the month when the application was submitted.  
  3. The applicant was Income Eligible:  meaning the applicant’s income was less then the state published Income Cap or a Miller Trust was in place on the 1st day of the month in which the application was submitted.  The Income Cap in Arkansas as of the date of this article is $2,250 per month.  Otherwise the applicant does not qualify for Medicaid or the start of the Penalty Period.

What is a Miller Trust?

There are a lot of rules to navigate when it comes to Medicaid qualification.  We know those rules and we can assist your family in the preservation of family wealth.  Give us a call if you have questions.

Clients ask us a form of this question almost every day.  Joint custody has been rare for the majority of the history of family law in Arkansas.  However, that trend is changing in many courts throughout the state.

When a Judge is considering custody of children, they always look at what is in “the best interest of the child.” This “best interest” test is an all-encompassing look at the child’s quality of life, rather than just a factor test.

Joint custody is in the best interest of the child when the child will get equally good parenting and support from both parents. Joint custody is in the best interest of the child when the child is not going to be put under lots of stress from having to bounce back and forth from house to house. One of the main sources of this kind of stress is distance between the parent’s homes. It’s less of a strain child if the parents live in the same town or city. Living close allows the child to attend the same school and extracurricular activities regardless of whose house they’re at. So living close to the other parent is normally beneficial when parties are wanting joint custody.

It is always in the best interest of the child for that child to continue to maintain a healthy relationship with both parents. If the court believes one parent is going to intentionally harm the child’s relationship with the other parent, the court will be less likely to grant joint custody.

Overall, there are many factors which come into play when a court is considering if joint custody is in the best interest of a child.  We have experience in this area of the law and with the judges in Central Arkansas. If you would like to speak with someone about your specific facts, please give us a call and we will be happy to help.

You probably landed here because you’re going through a divorce, or you’re thinking about it, and you have children. If so, you’re in the right place. There are many issues surrounding child support in Arkansas and it’s important to know what your rights are.

When will a court order child support payments?

A court will almost always order child support when one of the parents in a divorce is going to get “primary physical custody.”  That is the parent who is going to spend more time with the child than the other parent. The parent spending more time with the child is the “custodial parent.” The parent spending less time with the child is the “non-custodial parent.” If the court orders this sort of custody arrangement, it is going to order the non-custodial parent to pay child support.

To determine the child support amount, the court looks at the non-custodial parent’s income.  For more information on the factors going into the amount of child support you or your spouse might end up paying click here.

How do I change a child support amount after it’s established?

Many non-custodial parents experience life changes that make it harder or easier to pay child support. The law calls these “material changes in circumstances.” That’s just a fancy way of saying that things have changed dramatically enough to justify the non-custodial parent paying more or less.  The most common change is the non-custodial parent’s income going up or down.

When this happens, either parent can “move the court” to change the child support payment amount.  That just means that you file something with the court explaining that things have changed and the court should change the payment.  It doesn’t matter if you’re the custodial parent and you think that your former spouse just got a huge raise, or if you’re the non-custodial parent and you just lost your job.  Either of those sets of circumstances is good reason for the court to change the support amount.

One important thing to note is that Arkansas courts almost never honor private agreements between parents. For example, say you and your ex agree to you paying a smaller support payment, but you don’t get the court to approve it. Then, a year or so down the line, things go sideways with your ex.  If your ex wants to, they can ask the court to hold you in contempt. That means that you haven’t been complying with the court’s order. Because the court didn’t OK your smaller payment, you’re not doing what the court told you to do, even if your ex was alright with it at the time. It’s important to get a court to sign off on any change in a support payment to prevent this scenario from happening.

This is something we at wh Law | We Help do all the time.  If you are looking to modify a child support amount, give us a call.  We can review your case for a change of circumstances and move the court to change it for you.

What happens if I don’t pay my child support payments?

As I outlined above, you can be “held in contempt” if you don’t pay the right child support payment.  The same is true if you don’t pay any child support, at all.

If you’re not paying child support, the custodial parent can file a “motion for contempt” with the court.  The court will then order you to appear in court and explain why you haven’t paid. If the court doesn’t think you’ve had good reasons for not paying, they can hold you in contempt.

There can be serious consequences if you’re held in contempt of court.  You can be ordered to pay all the child support you owe right then and there.  The judge can jail you until you pay what you owe. If the court thinks the contempt is serious enough, it may just jail you for a certain period of time.  The judge can’t jail you for more than thirty days, though.

Bottom Line: There are a big number of legal issues surrounding child support.  If you are having an issue with a child support obligation, or getting one established, we can help.  We’ve handled a ton of cases in this area of the law and we know how to navigate the difficult issues.  Give us a call for a free consultation today.

Some other interesting blogs on the topic:

Child Support Laws: Equitable and Fair for Both Parents?

How Far Back Does Arkansas Child Support Go?

When Does Arkansas Child Support Stop?

We always feel disappointed when our clients do not get what they want in court. After pouring time and effort into a case, it can be heartbreaking. We may never feel the brunt of the disappointment like the client, but it hurts. Knowing that feeling motivates us

Occasionally, we have lost cases we should have won. There are other times when we won cases that we maybe shouldn’t have.

Both of those scenarios are rare.  The key to winning family law cases is hard work and preparation.  We’re good at that.

Family law judges have seen every case under the sun. They hear every possible story and every possible argument about why something matters for the best interest of a child. Usually, judges hear the same stories from the same people multiple times. Family law judges see the results of their previous decisions and, hopefully, learn from them.

Family law judges get lied to.  A lot. Many times, there is no real evidence to be seen that can confirm the truth, so a judge is left to depend on their gut. It may sound crazy, but it’s a fact that judges often make decisions based on who they think is telling the truth.

Most family law judges can see past the individuals and understand the entire family dynamic. The parties and their lawyers are focused in on what makes the client look good and the other person look bad. But a family is a lot more than just individuals with good and bad traits. Understanding how a family operates can make otherwise-significant facts less important and could elevate facts that might not seem that important in isolation.

Generally, family law judges are good at what they do.  Most of the time they make decisions that are in the best interest of children.

There are, however, a few recurring issues where a lot of judges might miss the ball, including:

  1. Drugs. Many family law judges apply little or no nuance when weighing drug use. All illegal drugs are given the same weight, which is probably more than they ought to, while prescription drug use is largely ignored.

 

  1. Mental health. Though it is far less than it used to be, there is still a societal stigma about seeing a mental health professional. The stigma can extend to family court, where a judge is suspicious of a parent because of attendance in therapy or a mental health diagnosis. Unfortunately, the parties to a child custody proceeding are often in desperate need of a mental health professional but cannot see one because of its potentially negative effects on a custody case.

 

  1. Parental alienation. There are many judges who do not give one parent’s effort to cut out the other parent enough weight when deciding what is in the child’s best interest. A parent who will deliberately disrupt a child’s relationship with the other parent does not have the child’s interest in mind. A judge is often prone to weigh some drug issue or minor criminal charge or inconsistent employment more heavily than alienation, which is a problem. A parent who leads a clean life but cuts the other parent out will often be worse for the child in the long run.

 

A big part of having a judge make the right decision on your case is having the right representation, including a team of lawyers who are familiar with what certain judges want.

When you hire us, you are hiring specific knowledge about the judges in Central Arkansas and what is persuasive in their courtroom.

Other interesting blogs on the topic:

What are some examples of what is in the best interest of a child?

Arkansas Divorce Myths and Facts

Family Visitation Supervised

Many individuals who have completed a sex offender assessment disagree with the level assigned to them by the committee. It is possible to appeal your assessment.  To successfully appeal, it’s very important to have a lawyer who understands the process.

You can appeal, but you need to start the process as soon as you get your notification letter.

There are some very tight deadlines for applying for an appeal after receiving your notification letter.  If you don’t hit those deadlines, your appeal won’t be reviewed.

You have to send back a request for an appeal within fifteen days of getting your notification.  Your request has to contain specific requests and follow the procedure for requesting an appeal. Again, if you don’t follow the procedures, your appeal wont’ be reviewed.

How is the assessment reviewed?

When you’re appealing an assessment, you have to give a specific reason for the review.  You can claim the rules for the assessment weren’t followed by the committee. You can produce new evidence that the committee didn’t have when it made the assessment.  You can also claim the assessment wasn’t substantially supported by the evidence the committee had.

Hiring an attorney who understands the process is the best strategy.

The requirements for an appeal are technical and it has to be requested quickly.  To make sure your request for an appeal goes forward, you should hire an attorney that is familiar with the process. The best time to hire an attorney is before your first assessment so that your attorney can have plenty of time to craft your request for an appeal so it is accepted.

What do I do if my request is denied?

If your appeal is denied, you can actually appeal the administrative review of your assessment to circuit court.  There are a number of complicated legal issues with an administrative appeal to circuit court. Again, the best way to prepare for that process is to hire an attorney who is experienced with the process before the process begins.

If you are preparing for a Sex Offender Level Assessment, call us so that we can help you prepare for the appeals process.  

Other interesting blogs on the topic:

Sex Offender Deregistration

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

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.

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, 501.891.6000, or set up a free consultation by clicking here.

wh Law, is a debt relief agency. We help people file for bankruptcy protection under the U.S. Bankruptcy Code.

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.

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