Page Array – Wilson and Haubert https://whlawoffices.com Attorneys at Law | North Little Rock, Bryant, Cabot Sat, 15 Dec 2018 15:39:02 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.8 https://whlawoffices.com/wp-content/uploads/2018/03/cropped-512x512-1-32x32.jpg Page Array – Wilson and Haubert https://whlawoffices.com 32 32 Dealing with Harassment as a Registered Sex Offender https://whlawoffices.com/sex-offender-harassment/ https://whlawoffices.com/sex-offender-harassment/#respond Tue, 11 Dec 2018 21:09:45 +0000 https://whlawoffices.com/?p=4542 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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Filing Bankruptcy and Retirement Accounts https://whlawoffices.com/filing-bankruptcy-retirement-accounts/ https://whlawoffices.com/filing-bankruptcy-retirement-accounts/#respond Mon, 10 Dec 2018 07:15:07 +0000 https://whlawoffices.com/?p=4788 What happens to your retirement funds if you file bankruptcy before you retire? How about during retirement? Is your Social Security income at risk? Does bankruptcy even make sense for seniors? Here are the answers to five common questions about retirement in bankruptcy.

 

How Will Filing Bankruptcy Affect My Retirement Funds?

Retirement accounts will probably will not be affected. Regardless of how much you have saved in your 401(k), 403(b), 457(b), Keogh or other profit-sharing or defined benefit plan, the money in these retirement accounts cannot be touched by creditors if you file Chapter 7 bankruptcy.  They also don’t affect the amount you pay back when filing Chapter 13 bankruptcy. If you have funds saved in an IRA, Roth IRA, SEP IRA or SIMPLE IRA, the funds are also generally exempt from creditors, to an extent. As of 2016, this limit was $1.2 million ($1,283,025, to be exact). It increases each year to adjust for the cost of living.

 

Should I use my retirement to pay off bills instead of filing bankruptcy?

  1. There are two ways people usually use retirement to pay off debt: 1) take a distribution from your 401(k) or your IRA to pay off debt; or 2) take a loan out against your retirement. Both of these are almost never a good idea because you’re using protected money to pay debts that could be eliminated just by filing a bankruptcy case. I’ll let you in on a little secret. This almost never fixes the fundamental problem. You may pay off the debt, but what happens in a few years when you’ve charged up those accounts again? You’ll find yourself deep in debt again with no retirement. And, if you withdraw those funds from your 401(k) or your IRA before you turn 59 and a half, you’ll owe a big fat tax bill the following year.

 

What If I Am Already in Retirement and Taking Distributions?

If you are taking income from your retirement accounts, that money is more accessible to creditors. But it depends on how much income you need to meet your living expenses. For individuals who file Chapter 7 bankruptcy, anything above what you need to support yourself could be fair game to creditors. For those who file Chapter 13 bankruptcy, the income from your retirement plan or plans will likely be included in determining how much you can afford to repay your debt. That being said, you cannot be forced to take out more income than you need.

 

Can Creditors Get to My Social Security Income?

Social Security and disability income are protected under federal law from being garnished by creditors. Once the money hits your bank account, however, the money is susceptible to potential garnishment. The good news is that under a rule established in 2011, banks must know whether federal benefits are included in an account before garnishing the assets. If Social Security or similar government benefits are in a bank account with other funds, two months’ worth of benefits are protected from garnishment. Some individuals play it safe by holding Social Security income in a separate account so it is clear that the assets are separate from others.

 

Can I get rid of Medical Debts Through Bankruptcy?

Yes, if you qualify for Chapter 7 bankruptcy, your medical bills or healthcare related debt is counted among the types of debt that can be discharged (in other words: completely wiped away). Credit card debt, personal loans, utility bills, attorney fees, and some court judgments can also be discharged. Mortgage, car payments, tax liens and other tax bills, child support, and most student loan debt are bills that are generally non-dischargeable in a Chapter 7 bankruptcy. If you do not qualify for Chapter 7 because you have the income to meet these obligations, you could consider Chapter 13. Under this type of bankruptcy, you pay back creditors, including medical providers, over time. However, if your income is not high enough, none of your unsecured creditors get paid (this includes medical bills and credit cards.)

 

Is Bankruptcy a Good Idea for Seniors?

That depends on your situation. If you are drowning in unpaid medical bills or credit card interest and late fees, bankruptcy could offer some relief. However, some seniors may be considered “judgment proof,” which means that you simply do not have anything for creditors to collect if they sue you and win. If this is your case, a bankruptcy may be unnecessary.

Find out more about bankruptcy and whether it makes sense for you by calling, 501.372.1212, or set up a free consultation by clicking here.

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What do I have to include when filing for bankruptcy? https://whlawoffices.com/bankruptcy-assets-debts/ https://whlawoffices.com/bankruptcy-assets-debts/#respond Fri, 07 Dec 2018 23:32:13 +0000 https://whlawoffices.com/?p=4794

The short answer – Everything!

But it’s going to be ok.  Including it in your filing doesn’t mean you can’t keep your stuff.

 

Assets | Do I have to include all of my property when filing bankruptcy?

We’ll start with what everyone is worried about. Keeping their stuff. You do need to list everything you own but including it in a bankruptcy does not mean losing it. Most people keep everything they have unless they want to get rid of it. Do you have a car you are upside down on that you don’t want to keep paying for? Surrender it. Want to keep it, but pay less for it? See if a cram down is available in a Chapter 13 bankruptcy.

On your bankruptcy forms, you will have to list all property you own and how much it's worth. (You can group things together into categories, such as "household items" or "albums.") Your property isn’t just the obvious items, such as real estate and automobiles. It’s all items that you own of any value, such as jewelry, furniture, books, collectables, guns (we all love our guns), and other household goods.

Once you have listed all of the items, you need to write down how much each item is worth by figuring out its replacement cost. Replacement cost is what you would have to pay to buy the same item, of a similar age and in similar condition. Your assets also include bank accounts, retirement accounts, and cash on hand. As money flows in and out of accounts, these numbers will change, but give the best estimate you have. Think of this as a snapshot of everything you have heading into bankruptcy.

 

Debts | Do I have to include all of my debts when I file bankruptcy?

You need to make a list of all your debts, whether you intend to repay them or not.  For every debt you have listed, you will need to include an account number, full contact information for the creditor, and how much you owe.

Basic Personal Information

 In addition to your name, your address, and your Social Security number, you'll need to provide names you've used in the past eight years, your children's ages, the name and address of your employers, and personal information about your spouse (if you have one).  

Income

You'll need proof of your income, such as paystubs or a statement from your employer, as well as your most recent tax return. You will need to actually submit your tax returns – last 2 years for Chapter 7 and last 4 years for Chapter 13. You will need to provide the last 6 months of paystubs. This is the 6 months before the month you file. So, if you file on July 25th, then you need to provide paystubs from January to June for that year. For your bankruptcy forms, you'll need to supply information about your earnings from all sources for the past two years.  

Expenses

You will need to list all of your monthly expenses as accurately as possible. This includes all of your regular monthly expenses, such as mortgage or rent, utilities, auto payments, insurance, groceries, and all household expenses. Don’t forget to include expenses that you may pay only once or twice a year, such as insurance, property taxes, or school expenses. If you own an automobile, include maintenance expenses, fuel, insurance, and repairs. If you do not own a vehicle, but commute everywhere, include travel expenses such as bus fares.  Include everything.

Financial Transactions

You'll also need to provide information on certain transfers of money or property in the past couple of years, such as property or money you've given away or sold, debts you've paid off, bank accounts you've closed, and so on.  

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

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Arkansas Open Container Laws https://whlawoffices.com/arkansas-open-container-laws/ https://whlawoffices.com/arkansas-open-container-laws/#respond Tue, 27 Nov 2018 21:05:50 +0000 https://whlawoffices.com/?p=4544 Can I have an open container of alcohol in my vehicle while driving in Arkansas?

Up until 2017, the answer was yes. But the recently passed HB 1001 changes that. Now, it is illegal for passengers to have an open alcoholic beverage while on a highway or other public road.

It is legal to have an open alcohol container if it’s kept in a specific part of the vehicle. For instance, a locked glovebox or outside the passenger compartment. There is also an exception for open alcoholic containers in RVs as long as the container is in the living quarters.

This law is codified under Arkansas Code Annotated 5-71-218 and is a Class C Misdemeanor. What this means is you can be punished by a maximum of 30 days in jail for this offense. However, in most parts of the state, jail time is highly unlikely for such a minor violation.

If you have been charged with a violation of the Arkansas Open Container Law, give us a call for a free consultation.

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Can an Arkansas Divorce Court Divide Retirement Accounts? https://whlawoffices.com/retirement-accounts-during-divorce/ https://whlawoffices.com/retirement-accounts-during-divorce/#respond Tue, 20 Nov 2018 13:33:11 +0000 https://whlawoffices.com/?p=4433 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.

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Is there Alimony in Arkansas? https://whlawoffices.com/arkansas-alimony/ https://whlawoffices.com/arkansas-alimony/#respond Tue, 13 Nov 2018 13:27:42 +0000 https://whlawoffices.com/?p=4316 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 Wilson and Haubert, 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.

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How Do Arkansas Laws Determine Child Support? https://whlawoffices.com/arkansas-child-support-calculator/ https://whlawoffices.com/arkansas-child-support-calculator/#respond Sat, 10 Nov 2018 23:27:04 +0000 https://whlawoffices.com/?p=4609

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.

Arkansas Child Support Calculator

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.

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Explanation of the Calculator:

  1. Number of Children - this is the number of children you are calculating for one child support case. If you have other child support cases, that number goes under No. 8
  2. Frequency of Pay - this is how often you get paid
  3. Gross Income - this is your paycheck BEFORE deductions
  4. Federal Income Taxes Withheld - this the federal taxes deducted from your paycheck
  5. State Taxes Withheld - this the amount of state taxes deducted from your paycheck
  6. F.I.C.A and Medicare - this is the social security and medicare deducted from your paycheck
  7. Health Insurance (children only) - this is the amount of health insurance you pay for your children
  8. Court-ordered child support - this is other (not for the case you are calculating) child support you are ordered to pay - if you have two or more child support cases

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:

Standard Reasons to Deviate 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 Reasons to Deviate Child Support:

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.

Definition of Income

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:

  1. Federal and state income tax
  2. Withholding for Social Security, Medicare, and railroad retirement
  3. Medical insurance paid for dependent children, and
  4. Current court ordered support payments paid for other dependents

Imputed Income

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.

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Arkansas Divorce Myths and Facts https://whlawoffices.com/arkansas-divorce-myths/ https://whlawoffices.com/arkansas-divorce-myths/#respond Tue, 06 Nov 2018 13:25:45 +0000 https://whlawoffices.com/?p=4326 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.

If you need help with your divorce, contact Wilson & Haubert (call) (email).  The first consultation is free and we offer flat-fees so you know what you’re going to pay – at the beginning.

  1.  Most divorces are settled in court.

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.

Wilson & Haubert 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?

  1. Mom gets custody of the children, especially young children.

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.

  1. The spouse that cheated is at fault and will be punished by the court.

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.

  1. We can agree to a child support amount or decide it is not necessary.

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.

  1.  The kids want to live with me, they get to pick where they live.

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.

  1. I can keep the other parent from seeing the kids because he/she isn’t paying support, moved out, cheated, etc.

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.

  1. We each get half of the marital estate.

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.

  1. They won’t sign the papers, so I can’t get divorced.

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?

  1. I got (the house, land, mom’s insurance pay-out) before the marriage, so it is mine.

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.

  1. The father of my child and I were never married but his name is on the birth certificate so he is legally the father.

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.

See How to Establish Paternity

  1. A Domestic Restraining Order was filed in my divorce case.  I can’t talk to my spouse.

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.

See How do I keep someone away from me?

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.

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Is My Financial Advisor Practicing Law? https://whlawoffices.com/financial-advisors/ https://whlawoffices.com/financial-advisors/#respond Tue, 23 Oct 2018 13:19:51 +0000 https://whlawoffices.com/?p=4435

Through the years I have drafted estate plans and asset protection plans only to have a client call and question the validity of the plan based upon a conversation with a friend or relative.  If the conversation starts out something like this: “ I spoke with my brother-in-law and he says…”, my usual response is something like this: “Unless your brother-in-law has malpractice insurance for his advice, you are better off listening to me because I do have such insurance.”  That usually ends the discussion.

But what if the call is motivated by a discussion with your CPA or financial advisor?  After all, they are professionals, they do have specialized knowledge, you have known them for years and relied upon them for years, your relationship with me has likely been short-term.  It may surprise you, but my answer is usually the same as if the advice came from your brother-in-law: “Get the name of the malpractice carrier.”  Even though many non-lawyers are highly skilled in specific areas, they usually lack the broader viewpoint and depth provided by a good law school or years of legal experience.

The preparation of legal documents needed to execute a well-reasoned estate or asset protection plan is more than dusting off an old form or changing names in an existing form. The process involves the proper coordination of how a variety of assets are to be distributed in a specifically timed manner to address concerns and tax consequences.  The proper titling of assets is important in making the plan work. Beneficiary designations on qualified accounts must coordinate with individually held assets or jointly held assets in a manner to efficiently avoid over taxation. I could go on and on, but I think you get the picture. These are just a few examples of the kind of knowledge a good estate planning lawyer will have that your brother-in-law, or accountant, probably don’t.

There is no problem with your advisors reciting general legal rules.  Almost all financial professionals will know general rules on taxation such as cap gain rates and income tax rates. They most certainly will know how those rules are generally applied.  But beware. Providing advice involving the application of general legal principles to a specific situation is clearly the “practice of law.”

Drafting legal documents that apply general legal principles to your specific situation is clearly the “practice of law.”  The place I see this violated the most is in the formation of operating agreements for limited liability companies.  Your financial advisor or CPA should not be drafting these agreements or advising you on what provisions should be included or not included in those agreements.  Once again, drafting legal documents that apply general legal principles to your specific situation is clearly the “practice of law” which you shouldn’t do unless you’ve got a license to do so.

The point of this article is not to call out financial advisors — my business depends on them.  It is more intended to remind you, the client, not to expect this advice from your financial advisors or your tax preparers.  They are specialized and good at what they do, but they should not be practicing law and you should not expect them to. Stay with the guy who has the insurance when taking legal advice.

If you’re in need of estate planning advice, call us, the lawyers.

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Why Hire an Attorney for an Arkansas Parole Hearing? https://whlawoffices.com/parole-hearing/ https://whlawoffices.com/parole-hearing/#respond Tue, 09 Oct 2018 02:26:08 +0000 https://whlawoffices.com/?p=4252 The Arkansas Board of Parole (the Parole Board), reviews thousands of cases per year.  Most of these cases are decided by a few documents and a brief hearing (5 to 10 minutes).

Your loved one is a person, a person that deserves a second chance.  Reading about a bad decision or period of life problems and a few minutes of discussion may be the only opportunity the Arkansas Board of Parole has to consider if they will grant parole.  Someone should be present to show the PERSON behind the ADC inmate number.

There is another story to tell, one that presents your loved one as the person they have become, the skills that will help them succeed and the family and friends that are waiting to help them be successful.  This story needs to be heard and it needs to be effective.

If you or a family member are facing a parole hearing, our team can prepare an effective case on your behalf.  Contact us as soon as possible, so we can work together to build an effective story.

In the meantime, here is a review of the Arkansas Parole Hearing process, from the Arkansas Parole Board’s view.  You can see there are many obstacles and opportunities for failure and improvement. We’ve pointed out a few spots in italics.

Note, the Arkansas Board of Parole Policy Manual states “Attorneys will be offered preference to be moved to the top of the docket.”  One more reason to consider hiring an attorney.

Release Hearing Preparation

The inmate receives written notice of the hearing before a personal interview with the Institutional Release Officer (“IRO”) at their unit. This interview is to

(1) notify the inmate of the hearing,

(2) have the inmate sign:

  • A Notice of Hearing (so they are aware of the hearing)
  • A waiver of the hearing (if they don’t want a hearing),
  • A deferral of consideration (if they want the hearing to occur later).

(3) for the IRO to review the inmate’s parole plan (what the inmate will do when released)

A parole plan should be completed BEFORE potential hearing dates.

(4) provide any Form 153’s

These are recommendations from sheriffs, judges, and prosecuting attorneys.

Hiring a criminal defense attorney to counter negative 153’s can be an important factor in success

(5) to answer the inmate’s questions about parole.

Before the hearing, Institutional Release Services staff will prepare the State’s parole file.

The State must follow certain procedures and the file MUST have specific documents and information.  Our team will review and question whether the process was followed.

The parole file must have:

  1. A voting worksheet for the Board members,
  2. A summary of the State’s file
  3. A Field Report from a Parole Officer
  4. All required legal notices

Do you know what is needed or if anything is missing?

  1. Results of a validated risk/needs assessment
  2. Victim notification information, if required
  3. Form 153 responses from prosecutors, judges, etc.)

Remember, your responses to 153 issues are important.

  1. Support and protest correspondence, if any,

Our attorneys will help build effective support statements.

  1. Prior Boot Camp or parole violation warrants, reports, transcripts, and
  2. Parole plan.

Your parole plan is critical, and we can help you build an approvable plan.

 

The Parole Hearing

Board members receive the file prior to the hearing, for review and use during the hearing.

Your 5-minute hearing may seem like the first time the file has been reviewed.

State law prohibits staff from releasing State criminal justice records to inmates.

When confidential information is used for a decision, the Board member should tell the inmate that confidential information is being used.  Was confidential information used?

Each inmate may invite a representative to attend and speak on his/her behalf at the Board hearing.

There is no limit to the number of visitors an inmate may invite to the hearing.  Visitors are not required to be on the inmate’s Visitation List but must be eligible to be on the List.

The Board may limit presentations to just one visitor in addition to the inmate or their representative.

In most cases, only one visitor has a chance to speak because the hearings are brief.

 

Decision Criteria

Release or discretionary transfer may be granted to an eligible person by the Board when, in its opinion, there is a reasonable probability that the person can be released without detriment to the community or him/herself.

The Board must consider a list of specific factors when a determination is made.

An experienced attorney will review and prepare your case to ensure these factors were considered and your side of the story was presented effectively.

Most Arkansas parole hearings are conducted without attorney involvement and showing up without an attorney rarely, if ever, improves the outcome.  Our attorneys are experienced at developing compelling stories that present people as-a-whole, not a conviction record and administrative paperwork

When a second chance is at stake, it is time to present the story of a person, not a number.  The team at Wilson & Haubert is honored to help write that story. Please contact us today if you or a loved one are facing a parole hearing.

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