When is it time to hire a family lawyer?
Of course what you expect to hear from a lawyer about when you should hire them is something along the lines of “the sooner the better.” And not to upset you further – but the sooner you hire a lawyer, the better the shot is for them to achieve the results that you desire. One tell-tale sign that you need to hire a family lawyer A.S.A.P. is if you’re being served papers by the person you’re fighting that they are taking you to court. A good family attorney knows the best way to respond to those papers as well as all of the nitpicky rules that go along with the legal process, such as time limits to respond and things you can say but shouldn’t because they might ruin you in court. This warning sign means double if you’re opponent has hired an attorney to write up those papers to send you.
If you do go it alone, what could go wrong?
Simple answer . . . everything. Very few lawyers wouldn’t jump at the opportunity to win their case for their client as quickly and easily (and inexpensively) as possible when they learn that the other side of the lawsuit – their opponent, the person they are suing or who their client is being sued by – is appearing pro se, the fancy legal Latin term meaning “by oneself.” Family lawyers didn’t spend a bunch of money to go to law school just so they could lose in a court of law to a nonlawyer. The legal process from start to finish is an intricate one and missing one step or one deadline may mean the end to your lawsuit and the beginning of even worse troubles for yourself.
A few examples of what could happen if you decide you’re better off on your own.
1. You fail to follow a court order and get held in contempt, being forced to pay an additional fine or even go to jail.
2. You fail to adequately respond to something served on you by the other side and when you get to Court, the Judge tells you “You can’t bring that up. You should’ve said that weeks ago when you had the chance.”
3. You file a complaint for divorce on your own and show up to Court where you learn the process will keep dragging on because you didn’t argue a ground for divorce under the law, you can’t prove the things that you think entitle you to a divorce, or it gets thrown out all together because you filed it in the wrong place.
This short list is really without end. If you think the time is coming for you to lawyer up, do it now. But better late than never and our experienced attorneys are here to help.
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.
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.
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.
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:
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:
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:
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.
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.
One of the most frustrating conversations that I have with divorce clients is about his or her retirement accounts. Everyone knows that you must split the house and the bank accounts and the debt, but it is offensive to most people when they learn that you may have to split your retirement during a divorce, too. Most of us have heard about the value of compound interest and how much we need to retire since we were kids. Our retirements are part of the American Dream. Our retirement accounts have a special, almost sacred status.
And that’s why it’s so frustrating when people learn that the money you contribute to retirement accounts during a marriage and the interest that you earn on it is marital property under Arkansas law. Since it is marital property, it may be divided by a divorce court.
Most retirement-type accounts fall into one of two categories: qualified accounts and pensions. Examples of qualified retirement accounts include IRA’s (both Traditional and Roth) and 401(k)s. A pension is a certain amount of money that you can expect to draw per month upon retirement. Both can be (and routinely are) divided in a divorce.
Qualified accounts are special accounts that have certain tax advantages. With an IRA, you get the advantage of either being able to put money in one without it being taxed or being able to put already-taxed income in one without having to pay taxes on the interest you earn. 401(k)s are special accounts that are provided through an employer. A pension is also usually a qualified account.
Note: If you have substantial assets in a qualified account, you need an estate plan.
It is important to know whether an account is qualified because it will require a certain special order of the court to make the division, which is called a Qualified Domestic Relations Order, or “QDRO.” (There are several different ways to pronounce that word, all of which sound ridiculous. Quad-row sounds like a big minivan and Cue-drow sounds like, well, an annoying actress.)
A QDRO is not difficult to draft, but it is tedious. A family lawyer needs to be very careful to get the details correct in the QDRO or it can have disastrous consequences for a client. Additionally, the companies that manage qualified accounts are terribly particular about the language in a QDRO. Sometimes getting them to approve one requires several drafts.
We know how to handle QDRO’s. If you are facing a divorce where there are retirement accounts to divide, you need to make sure that you hire someone with experience drafting QDRO’s that do what they’re supposed to do and will be accepted by investment companies. We have that experience, and if you’re about to begin the process of getting a divorce and have retirement accounts, give us a call and we’ll get to work on your case today.
Yes, there is alimony in Arkansas. Always has been and there always will be.
Note: This is another good reason to make sure that you get your legal information from a lawyer (or at least a good lawyer’s website). I regularly speak to people who are convinced that there is none in Arkansas. Citation: Uncle Joe, who went through a nasty divorce in 1988 and considers himself an expert in family law. And the law, generally. And politics. And sports. And barbecue. Etc.
There are two general types: Permanent alimony and rehabilitative alimony. Alimony is sometimes referred to as spousal support.
Permanent alimony is, as the name suggests, permanent. It will last for as long as the payor or payee is alive and the payee remains unmarried. It is appropriate in long-term marriages where the financial imbalance is unlikely to change. In very limited circumstances, an existing permanent alimony payment can be modified or terminated, depending on the structure of your divorce decree.
Rehabilitative alimony is for situations where the payee spouse needs financial assistance for a period of time to become financially independent. This may mean looking for a job or a new job or going to college. It expires at a certain period after the divorce and normally tapers off over time.
So, if the payee is 64 years old and was a stay-at-home parent for 38 years and completely dependent on the other spouse, he or she is a good candidate for permanent alimony in Arkansas.
If the payee is 34 years old and was a stay-at-home parent for 8 years, during which time he or she interrupted a career that can be re-entered, he or she is a good candidate for rehabilitative alimony.
Alimony has nothing to do with adultery or any other bad thing that one spouse did to the other. It is not punishment; it is simply a question about one person’s need for support and the other person’s ability to pay.
Alimony can be awarded to a wife or husband.
You cannot get it in a situation where you merely cohabitate with a person; you must actually be married.
If you’re considering filing for divorce and you have concerns about being eligible for alimony or your spouse seeking it, it’s important to have an experienced lawyer to make sure you get what is fair. We can also review your divorce decree to determine whether your payment can be modified. At wh Law | We Help, we have years of experience dealing with alimony and if you give us a call, we’ll make sure you get the best representation available.
To determine child support you can use the calculator below. Select or enter the appropriate information next to each statement. When you have completed the form, click on the calculate button to get an estimate of the amount of determined child support that the non-custodial parent will have to pay to the custodial parent in Arkansas.
You can use this calculator to determine the child support you should pay under Arkansas law. This calculator does not compute deviations when determining child support. You need to speak to a lawyer if you want to deviate.
Parents who don't have primary physical custody of their children still have a legal obligation to financially support them. Arkansas child support lasts until the child turns 19 or graduates high school, whichever happens first. That being said, a court can determine child support should be paid past that point in certain situations. The amount of child support that the non-custodial parent (the parent who isn't living with the children) is required to pay is determined on a state-by-state basis. In Arkansas, a non-custodial parent's support obligation is calculated by using the state's Child Support Guidelines (see Arkansas Rules and Administrative Order No. 10).
There is a rebuttable presumption that to determine a child support award based on the child support guidelines is the appropriate amount that should be ordered. However, the court has the power to deviate from the guidelines if there is evidence showing that the child(ren) need a different amount of support. When deciding whether or not to deviate, the court will strive to do what is in the best interest of the child, and will only deviate from the guidelines if the award resulting under the guidelines would be unjust or inappropriate. Here are some reasons you can deviate from the determined child support:
Food; Shelter and utilities; Clothing; Medical expenses; Educational expenses; Dental expenses; Child care (includes nursery, baby sitting, daycare or other expenses for supervision of children necessary for the custodial parent to work); Accustomed standard of living; Recreation; Insurance; Transportation Expenses; and Other income or assets available to support the child from whatever source, including the income of the custodial parent.
Additional factors may warrant adjustments to the child support obligations and shall include: The procurement and maintenance of life insurance, health insurance, dental insurance for the children's benefit; The provision or payment of necessary medical, dental, optical, psychological or counseling expenses of the children (e.g., orthopedic shoes, glasses, braces, etc.); The creation or maintenance of a trust fund for the children; The provision or payment of special education needs or expenses of the child; The provision or payment of day care for a child; The extraordinary time spent with the noncustodial parent, or shared or joint custody arrangements; The support required and given by a payor for dependent children, even in the absence of a court order; and Where the amount of child support indicated by the chart is less than the normal costs of child care, the court shall consider whether a deviation is appropriate.
A parent's support obligation is based on their monthly income. The idea is for "income" to be a broad term in order to benefit the child. Under Arkansas' child support guidelines, income means any form of payment (for example wages, commissions, bonuses, worker's compensation, and interest) minus the following deductions:
How is child support calculated if the non-custodial parent is unemployed or underemployed? In these situations the court may consider whether the parent is under-employed as a matter of choice or not. If the court determines that the parent is working below their full earning capacity without reasonable cause, the court may impute income to the parent. This means the court may make a parent pay based on what they could make, not based on what they do make.
If you are thinking about or going through a divorce in Arkansas, you will receive free advice from many sources and a lot of it will be wrong. Most of us know someone that has been divorced and they will often give advice (whether you ask for it or not). Arkansas divorce law can be difficult to fully understand. If you have children and property, divorce can become very frustrating.
Misunderstanding divorce law and making the wrong moves can have a big impact on your final result. Below are a few Arkansas divorce myths and facts.
A divorce suit begins with the filing of a complaint, but that does not mean it will end in a trial. It also doesn’t mean you must have expensive court battles and long delays. Most Arkansas divorces are settled without a final divorce hearing in court. Normally, competent attorneys can work with you to arrive at a final agreement. This avoids a third party (judge) hearing your case for a few hours, then determining important issues that will impact you and your children for years.
wh Law | We Help provides flat-fee divorces. Our goal is the same as yours – resolve your divorce favorably, without unnecessary delays or running up bills for extra attorney hours. For more information on flat-fees see: How much does an Arkansas divorce cost?
Arkansas law does not favor either parent. This has been a fact for many years, but I still hear this on a regular basis. Custody and visitation is based on the best interests of the child and depends on the facts and circumstances of your particular case. This does not change just because the child is an infant or toddler.
Cheating, or adultery, provides grounds for asking the court for a divorce. It does not put the cheating party in a worse position for child custody, property settlement or any other divorce issues. If that seems unfair, consider this: Is cheating an indication that the person is a bad at marriage? Of course. Does cheating, alone, show that they are a bad parent? No. Did cheating have consequences for someone during a divorce in 1818, probably? In 2018? No.
Wrong. Child support is determined by Arkansas state law. Unless there is joint custody, Arkansas child support must follow charts provided to the court. Support is based on the amount of income the non-custodial parent (the parent that has the child less) makes, how often they are paid per month and how many other children the paying parent has to support.
You cannot agree to a different amount, but the court might allow an amount that is not on the chart. You must provide the proper information for the court to allow it. It is very easy to get this wrong without the help of an attorney.
We regularly help clients that have filed their own divorce and had it denied for incorrect child support arrangements. And, no, you can’t agree to take a smaller property settlement to eliminate child support.
A judge might consider the preference of your children, but this is only one of several factors used to decide custody and it may carry little or no weight (consider, the age of the child or evidence that one parent is telling the child what to say). Also, do you really want to force the kids to pick sides or testify in court?
Arkansas courts base child custody decisions on the “best interests of the child.” For more information on “best interests of the child” see: 4 Things NOT in the Best Interest of the Child – and Joint Custody and Relocation in Arkansas.
Wrong. There is a process for enforcing child support. Denying access to the kids is not it. Threatening or denying visitation is always a bad idea, regardless of the reason (other than true safety issues, which you should take to the judge). An important factor in the “best interests of the child” is whether one parent is keeping the other from having a relationship with the child.
Arkansas divides property based on “equitable distribution.” This does not mean equal, it means the property division will be fair. The court determines what is fair and has a lot of power to decide how things are divided. So, you might be awarded the marital home and your spouse might receive other property, cash or other item(s) of similar value.
You can move forward with a divorce without the other party signing, if you follow the right process. This is also a common problem we see with potential clients, especially when they have already attempted a divorce on their own. Interestingly, the divorce is often “uncontested,” but the other party can’t be found or just won’t cooperate, even though children and property are not involved. See, How Do I Serve Someone?
Not necessarily. Remember, “equitable distribution” above? Normally, the court will divide property fairly. Also, you may have taken actions that has turned non-marital property into marital property. Consult an attorney about your property, any action that might have caused a problem and ANY action you might take now or during the divorce that could create a problem.
There is a presumption that your spouse is the father of your child if the child was born during the marriage. However, if a child was born out of wedlock, paternity is only established by DNA testing or execution of an affidavit acknowledgment paternity by the father. Merely placing the father on the birth certificate does not establish that he is the legal father. This means that he has no legal rights to the child and unless paternity is established by appropriate means, child support cannot be collected from him and other rights of inheritance for the child are not available. Although having the father’s name on the birth certificate does not convey paternity, it may be used to aid in the presumption of paternity when trying to prove it is so.
Wrong. A restraining order prevents you from performing some act. Many people are surprised by the name of this document, especially when filed by their attorney. This is NOT an Order of Protection or No Contact Order. It serves specific and important purposes: prevents marital property from being removed from the court’s power, removing children from the court’s jurisdiction and tells the parties to act in a civil manner. When a divorce is filed, your property is under the jurisdiction of the court. The restraining order keeps both spouses from selling, trading, removing or destroying property or taking out loans. This is to make sure the property stays in place and is available for the judge to equitably (fairly) divide the property.
A standard Domestic Restraining Order during divorce is NOT an order of protection or No contact order. If you need one for protection, you must follow the steps.
If you are unfortunately going through a divorce and need help working through the facts and myths of an Arkansas divorce, please contact us and our team will be happy to help you sort the myths from the truth.