On Probation in Arkansas? So long, Constitution!

probationWe all know police need probable cause to conduct a search of your vehicle and a warrant to conduct a search of your home. Well, they usually do, anyway. If you are on probation or parole in Arkansas, however, you have probably waived these requirements and given written consent for law enforcement to search your home or car at any time without a warrant. If this sounds scary, it is. It may not be as scary as prison, but it’s scary.

In exchange for not being incarcerated in the Arkansas Department of Corrections, many people are given the option for probation. (For more information about some specifics about probation in Arkansas, click here or here.) If they are incarcerated, they may be released early by satisfying the conditions of parole. When someone is given parole or placed on probation in Arkansas, they must abide by certain conditions. One of these conditions is that you agree to allow your car or home to be searched without probable cause and without a warrant.

This means that the police no longer need probable cause to search you or your vehicle, and they do not need a warrant to search your home. During the time you’re on parole or probation, you have basically waived your right to any protection under the 4th Amendment. If you think it’s strange that you can actually waive your right to protections in the Constitution, you’re not alone: It is strange.

In normal circumstances, if police have a lead or hunch that some type of illegal contraband is within a person’s home, they would need to gather evidence and present that evidence to an Arkansas judge. The judge would then issue a warrant if he or she believes that probable cause exists. With a search waiver, police just need to decide what time they would like to stop by and take a look inside your home. You might as well give them your car keys and house keys.

The good news is that even if you have signed a search waiver, you have certain defenses against police abuse of that waiver. An Arkansas Criminal Defense Lawyer can walk you through the steps to know whether you can fight the search.

If you feel you or your property was unlawfully searched, even if you are on parole or probation, give us a call today to speak about your case and any possible defenses you may have.

What is a Chapter 7 Bankruptcy Discharge?

Bankruptcy Discharge. It’s got a nice ring to it. It sounds like maybe you just get to forget about all your bills and move on, right? Well, not quite.

What Does the Term “Discharge” Mean in Chapter 7 Bankruptcy?

“Discharge” in Chapter 7 Bankruptcy refers to clearing the debtor’s (the person who filed bankruptcy) all, or most, past debts. Although most people expect that filing bankruptcy will wipe out all of their debts, that is not always the case. Chapter 7 Bakruptcy only discharges certain debtors of certain debts. The availability of discharge depends on the type of bankruptcy proceeding involved, who the debtor is, and what type of debts the debtor has.

Although a debtor is not personally liable for discharged debts, a valid lien that has not been avoided (made unenforceable) in the bankruptcy case will remain. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien. (This is another reason why it’s so important to tell your bankruptcy lawyer about ALL your debts!)bankruptcy-discharge

In most cases, Chapter 7 bankruptcy filers automatically receive a discharge at the end of their case. In Chapter 7, the court usually grants the discharge 60 days after the 341(a) Meeting of Creditors. Typically, this means you will obtain a discharge about four months after filing your Chapter 7 petition.

An experienced bankruptcy attorney can advise clients which debts will be discharged by a Chapter 7 bankruptcy and which debts will remain.

Which Debts Can Be Discharged in Arkansas?

Although not all debts are dischargeable, the majority of your debts will be discharged through Chapter 7, especially if you do not have any extraordinary circumstances. Among your dischargeable debt, only your debts that arose before the date of filing for Chapter 7 will be discharged. You will still be responsible for any debt you incur after filing your petition but before receiving a bankruptcy discharge.

The Bankruptcy Code lists 19 categories of debt that cannot be discharged. Everything that does not fall within these categories is dischargeable. Below is a list of the most common dischargeable debts. However, any misconduct or fraud in connection with the below categories may make them non-dischargeable.

Common Categories of Dischargeable Debt in Arkansas

  • credit card charges (including overdue and late fees)
  • collection agency accounts
  • medical bills
  • personal loans from friends, family, and employers
  • utility bills (past due amounts only)
  • dishonored checks (unless based on fraud)
  • student loans (only in a few rare circumstances)
  • repossession deficiency balances
  • auto accident claims (except those involving drunk driving)
  • business debts
  • money owed under lease agreements (includes past due rent)
  • civil court judgments (unless based on fraud)
  • tax penalties and unpaid taxes past a certain number of years
  • attorney fees (except child support and alimony awards)
  • revolving charge accounts (except extended payment charges)
  • social security overpayments, and
  • veterans assistance loans and overpayments.

What are the benefits of chapter 7 discharge?

Relief from Annoying Creditors

When you file for bankruptcy, creditors must stop contacting you and trying to collect the debt. You no longer are required to pay the debt, but if you have co-debtors that did not file, they are required to pay.

Stop garnishments and Lawsuits

You can stop garnishments and pending litigation. In most cases you can request that garnishments that happened right before you filed bankruptcy be returned.

How to Talk to Your Kids About Divorce

This is obviously a weighty and lengthy subject for a blog. I won’t pretend to offer anything comprehensive here; after all, I’m just a family lawyer, not a child psychologist or therapist. I have no advanced training in these issues.

And I don’t have much personal experience about divorce to bring to bear on these questions. Of all the divorces I have seen, both professionally and personally, I doubt I’ve seen any two people handle the situation any better than my parents. I have no horror stories from which to draw. I have always been thankful for that; having now seen the ugly side of many divorces, I can’t tell you what a blessing it was to have had parents wise enough to minimize the conflict and, as best they could, shield me from it. I guess that fact, and all the ugly situations I’ve seen, makes me want to help others make better decisions about this subject.

So my observations must come from what I’ve seen over the past several years, having handled dozens and dozens of Arkansas divorces. Most of what I’ve gleaned, unfortunately, comes from bad experiences. As a general rule, parents don’t handle talking to their kids about divorce very well.talk kids divorce

There are two reasons why this is a worthwhile thing to consider: First, and most important, it has a big impact on kids. In this age of political and social division, it’s impossible to get people to agree on anything. But one thing everyone does agree on—at least in theory—is that we need to protect kids from bad stuff.

The second reason is also important: The way you talk to your kids during a divorce can affect your child custody case. There is a lot of agreement on this front, too: Judges and attorneys and attorneys ad litem and professionals are on the same page that you simply should not use your kids to gain an advantage in a custody battle. If you do, you will hurt your credibility and trustworthiness, both of which are critical components of victory in a custody dispute.

Here’s what I’ve found to be some of the most important things to remember:

  1. If it all possible, speak to your kids together with your spouse, and make sure you speak to all the children at one time. When you present a united front, you minimize speculation and, even worse, older children feeling pressure to keep secrets from younger children.
  2. Make sure that you emphasize that you’re going to do everything you can not to disrupt their lives. Stability and continuity are the most important things for kids during this time.
  3. Plan what you’re going to say, preferably with your spouse. This is not the time to wing it.
  4. If you need to speak to your children without the benefit of your spouse, make sure not to blame them. It doesn’t matter whose fault the divorce is; it is never helpful to assign blame to the other person.
  5. It is not your kid’s fault that you’re getting a divorce, and you can’t say this enough. Say it over and over again.
  6. Avoid details. They aren’t helpful for your kids.

The funny thing about all this advice is that it’s obvious to any person. But most advice is obvious to everyone except the person going through a situation where it’s hard to follow.

This brings up another piece of advice that’s probably more important than anything: If you’re going through a divorce, surround yourself with wise people who can help you make good decisions. People tend to lose their minds during this stressful time, so no amount of good advice makes it through. That’s what your friends and family are for, assuming they are mature enough to tell the truth.

A good lawyer is a big help, too. Call us if you need us.

How to Stop Foreclosure through Chapter 7 Bankruptcy

stop foreclosureForeclosure is one of the most traumatic financial situations a person may face. And unfortunately, it is very common. If you are facing foreclosure, you may feel powerless and confused. But you can stop it if you take action. You can seek debt relief, work a deal with your mortgage company, or file for Chapter 7 Bankruptcy. Depending upon your particular situation, a knowledgeable Arkansas Bankruptcy Lawyer can walk you through your options and help you decide on the best way to save your home.

How to Stop Foreclosure through Chapter 7 Bankruptcy

Here are some steps to take to stop foreclosure with Bankruptcy:

1. Get the Documents Ready 

Gather all the documents dealing with your mortgage loan. You should also have ready all the legal documents and paperwork that you received regarding foreclosure action. These legal documents also need to be included as part of evidence for your Chapter 7 bankruptcy petition.

2. Gather your Current Statements 

If you have any other accounts that you owe money on, then you need to get the current statements for each account. When you file for an Arkansas bankruptcy, all your debts are an issue. You cannot just file bankruptcy on your mortgage debt.

You also need to obtain all the current bank statements, especially from any of the other financial accounts that you have. You will also need copies of your most recent tax returns and paystubs. It’s not just about documenting your debt; you need to document your assets and earnings too.

3. Obtain and File the Petition 

Once you gather all this information, you are ready to file for an Arkansas bankruptcy. Online forms are available, but naturally I suggest you hire a lawyer. Bankruptcy law can be confusing. If you are doing it yourself, after you fill out the form, then you need to file it with the United States Bankruptcy Clerk for either the Eastern or Western District of Arkansas, depending on where you live.

4. Send a Copy of the Stay to Your Lender

The Clerk will mail out your first round of notices. So, you need make sure all the addresses are included and correct in your petition. All of your creditors, co-owners, and co-debtors will receive notice of your bankruptcy.

5. Sign a Reaffirmation Agreement 

It may be in your best interest to enter into a Reaffirmation Agreement with your mortgage lender. However, it may not. You may not be able to afford your house or you may be upside down on your property. If you do enter into a re-affirmation agreement, you can keep your home and get out of foreclosure. However, you’ll have to carry on making mortgage payments according to the terms you’ve agreed to in your re-affirmation agreement.

The most important thing you need to know about avoiding foreclosure is that you have to do something. You cannot ignore your mortgage company. Please contact us for more information about all your options to save your home, including Chapter 7 Bankruptcy.

“Back to Bremen” Book by Cecelia Wilson

Anyone who’s ever worked very long in a long firm knows that it’s not really the lawyers that run everything; it’s the support staff. Here at Wilson & Haubert, we would be lost without our Office Manager Cecelia Wilson. She’s the one that keeps the wheels from coming off.

When she’s not wrangling a bunch of lawyers and running the office, she enjoys writing plays, books, and magazine articles. She has written the feature section in “Searcy Living” for years and always receives rave reviews on her pieces there. In that capacity, she has written extensively about interesting people in the community. According to her, everyone has a story; it’s up to her to capture it.Back to Bremen

She recently wrote and published a non-fiction book, “Back to Bremen,” about her dear friend Edith Röpke Harris.  Over the years, Edith shared with Cecelia the story of her childhood in World War II Germany. It is truly the kind of story you usually only see in the movies.  Throughout this time, Cecelia wrote condensed versions of Edith’s story as magazine articles, but they always toyed with the idea of someday discussing all the details for a book.  In 2013, Cecelia and Edith finally found the time to uncover all the details and begin the process of writing a full-length book on Edith’s story.

During months of interviews, Edith was surprised to find she remembered smaller facts she hadn’t thought of in seventy years.  There was a lot of research to be done as well to hone in on approximate dates, events, and specifics on the war itself.  For a year, Cecelia searched for a publisher interested in the manuscript; almost another full year was spent with an editor, with the publisher and his staff on cover art, page layout, and readying the manuscript for publication.  But, on March 28, 2017, on Edith’s 81st birthday, “Back to Bremen” was released. According to Cecelia, all the hard work was worth it. Not only does the family have a written history for their descendants, but the general public can now read this fascinating life that is also part of history.

You can purchase the book on Amazon.com, where it has received many excellent reviews. To discover more about the book, go to the book’s website.

Drug Tests and Your Nursing License

nursing drug testNurses and Lawyers have (at least) one thing in common: We both had to work really, really hard for our licenses. Lots of classes and lots of tests and then one big test (NCLEX!) and finally—Ah, finally!—the nurse gets the right to wear the scrubs and the lawyer gets the right to wear the suit.

So now that we have our license, it’s important that we keep it, right? In Arkansas, nurses are subject to the Arkansas State Board of Nursing. A nurse can get in hot water with the Board for many reasons, including positive drug tests, discrepancies with unwanted or unused drugs, falsifying medical records, failure to keep adequate records, failure to complete continuing education hours, etc.

One of the most frequent issues is the positive nursing drug test. The drug test itself is often just a co-worker or unsatisfied patient (or disgruntled girlfriend/boyfriend) that wants to cause problems for the nurse. Most often, the nurse shows up for work and is unimpaired but has drugs in his or her system. (So, for instance, the nurse has used drugs sometime in the past several days when he or she was not at work or on call.)

Upon arriving at work, the he or she is required to take a nursing drug test.

If you know you will test positive for drugs for which you do not have a prescription, the best thing for that person to do is refuse to take the drug test.

Yes, this will mean you will likely be fired from your job and will not be eligible for rehire at that job. (For more information about grounds for nursing discipline, go here.) This is difficult, but it is not as difficult as failing a drug test on the job. If a nurse does fail a drug test, he or she will lose the job anyway. If you fail the test, your employer will now report your failed drug test to the Arkansas State Nursing Board. Now, you have no job and also need an attorney to fight for you to keep your license active. If you simply refuse and resign your position, usually all you have to do is find a new job, and not fight for your license as well.

Once you are reported to the Arkansas State Board of Nursing for a positive drug test, you will receive a letter asking you to surrender your nursing license for a period of one year. At the end of that year, you may re-apply and will likely be put on some form of probation, which requires daily call-ins to see if you have been selected to be drug tested that day, along with quarterly reports by you and performance evaluations by your new employer (if you can find one).

Do not agree to surrender your license for one year.

Because your nursing license is so important, you should hire a lawyer to help to defend yourself against the Arkansas State Board of Nursing. There are many reasons why you would not have to surrender your license, and it is critical that you understand your rights. You must find someone who is experienced in negotiating with the Arkansas State Board of Nursing.

It is often very difficult for nurses with a violation on his or her record to find a job. If you value your position as a nurse and have a pending violation with the Arkansas State Board of Nursing, please call us to understand your rights and defend your license.

What is the Difference Between Custody and Guardianship?

child custodyIf there is one thing that everyone seems to agree on, it’s this: The law is confusing. Arkansas law itself is complicated enough; unfortunately, however, lawyers and lawmakers have made a cottage industry out of using words that make it even tougher to understand. I say “cottage industry” because, I suspect, some of the confusion is deliberately created for job security.

I practice family law, so I often get questions about the difference between child custody and guardianship. And it’s not just non-lawyers that see the confusion: I have often seen lawyers (and judges, frankly) that misuse or misunderstand or conflate the terms.

Here’s the best I can do to explain the difference between child custody and guardianship under Arkansas family law.

The term “custody” is sometimes informally used just to describe the person who happens to have the child at a certain time.

In a more (but not too) technical sense, custody is used to describe the arrangement that a mother and father have in regards to their children. Physical custody refers to who has the child and when, while legal custody refers to decision-making authority for the child. This is not an absolute, however.

guardianshipArkansas law also uses the term custody with grandparents. If a grandparent meets certain requirements, the law allows grandparents to ask a court for custody.

But a grandparent getting “custody” is pretty rare. If a grandparent is involved in a dispute over children, he or she normally is granted a guardianship.

Guardianship is in an entirely different section of the Arkansas code.

A guardianship is simply a court’s recognition that a person is not able to live without the help of another. This is called incapacity, and you can have an incapacity for several different reasons. A child is incapacitated because he or she is a child. A person might also have incapacity because she has dementia or Alzheimer’s or some other cognitive impairment that prevents her from being able to take care of herself.

Once a court agrees that a person has incapacity, it will appoint someone to take care of the person. Grandparents are often appointed guardians of children when, for some reason, the parents are not currently able to take care of the child.

This is a pretty basic explanation because a lawyer would need to understand all the facts in a situation to know whether it is a child custody issue or a guardianship issue. Depending on which it is, the Arkansas lawyer should approach the case differently.

We handle both kinds of cases and can help walk you through the process if you have questions.

Chapter 7 Bankruptcy: What is a Section 341 Meeting of Creditors?

What to expect after filing for Chapter 7 Bankruptcy

Soon after you file your Chapter 7 Bankruptcy, the court will schedule a 341 Meeting, aka the “meeting of creditors.” It has to take place at least 21 days after you file, but no later than 40 days after you file for chapter 7 bankruptcy. You must attend or your bankruptcy case can be dismissed.

chapter 7 bankruptcy

Information about the Section 341 Meeting of Creditors

The meeting will take place in a room, sometimes at the courthouse and sometime at other places, like the U.S. Trustee’s Office at the Bank of America Building in Little Rock. It will be a public place, but most likely the only other people there will be lawyers and people who are filing bankruptcy – creditors do not usually show up.

Who Attends the Meeting?

There will not be a Judge present. Your Chapter 7 bankruptcy Trustee will be there and will be the person conducting the meeting. Creditors usually will not show up for a 341 Meeting because they are not required to attend. But there situations where creditors may attend. For example, if you have a boat that you did not list on your petition for bankruptcy, the creditors will attend to find the location of the property. If you have secured property (property they can take back if you don’t pay, like cars or homes) then creditors may attend if you have not already communicated whether or not you are going to keep it or explained to them the condition of the property.

What Should You Bring to the Meeting?

You must bring a photo ID (driver’s license or other government-issued ID) and your Social Security card or other government document containing your Social Security number (W-2s, tax returns, Military ID). It is best you have your Social Security card, so if you are thinking about filing bankruptcy and can’t find it, order a replacement. Without these documents, the 341 Meeting cannot be conducted and you will have to reschedule the meeting.

Before the meeting, make sure you have sent the following documents to your lawyer:

  • Tax returns
  • Property tax statements
  • Pay stubs

What Questions Will be Asked at the Meeting?

Prior to the meeting the trustee will have reviewed your paperwork, income, debts, expenses, tax returns, and paystubs. The Chapter 7 Trustee’s main job is to sell nonexempt property to repay your unsecured creditors. The trustee also does the following things:

  • Searches for bankruptcy fraud
  • Makes sure the paperwork is accurate
  • Conducts an investigation into your property and finances

Because most of the fact-finding is done at the meeting of creditors, the Trustee will ask you questions that help him or her determine the facts, such as:

  • Do you have photo identification and your social security card?
  • Have your read the Statement of Information required by U.S.C § 341?
  • Did you review, read, and sign the bankruptcy documents prepared by your attorney?
  • Did you disclose all your creditors?
  • Did you disclose all your property?
  • Have you paid more than $600 to any unsecured creditor within the last 90 days?
  • Within the last year have you disposed of any property by sale, gift, or in any other way?
  • Within the last 3 years have you forgiven any debt owed to you by anyone?
  • Within the last 3 years have you forgiven any debt owed by a relative?
  • Have you transferred any property to a relative within 1 year?
  • Do you have a claim for damages against anyone for injuries to you for any accident with the last year?
  • Do you expect to receive an inheritance from anyone who has died?
  • If you do receive an inheritance with the next 6 months will you notify the trustee and your lawyer?

Remember that you will under oath so you must answer all questions truthfully or you may be subject to perjury charges.

What Occurs After the Meeting?

The hearing could be continued at a later date for the following reasons:

  • You need to provide more information to the trustee
  • You are missing required documents
  • You must amend your paperwork

You must have also completed a credit counseling briefing prior to filing and the required debtor-education course before your debts can be discharged. This should be completed as soon as possible so you can complete your bankruptcy case. As long as your creditors do not object to the discharge of your debts, you will receive your discharge order approximately 60 days after the meeting of creditors.

If you have questions about chapter 7 bankruptcy (or bankruptcy in general), we will be happy to chat. Feel free to contact us.

Estate Planning and Property Deeds

estate planningOne of the most important aspects of good estate planning is making sure that we have the information we need about your assets. Some estate planners in Arkansas are content simply to create a trust and leave it up to you to put your assets into it. (Otherwise known as “funding” your trust.)

Estate Planning 101: You Must Fund Your Trust

But a trust is no good if you don’t put anything in it. As a service to our estate planning clients, we will assist with the initial funding of your trust. For most of our estate planning clients, their most significant asset is their home. For that reason, it’s crucial that we have all the information about your home so that we can make sure it makes it into your trust.

The Home Deed

The most helpful document a client can provide us about their home is the deed. When our Firm does estate planning for our clients, I’m often asked whether we need a copy of a current deed to work from. The answer is, “Yes!” If we are drafting a new trust for you and you will be granting your property to that trust (or to another person or entity, for that matter), we always prefer to have a copy of your current deed.

Your current deed is filed with your county’s Circuit Clerk and provides a lot of valuable information. It tells us exactly who that property was granted TO (the Grantee). That helps us define who we should grant that property FROM. It also gives us a full, complete legal description, whereas your property tax statement may only provide an abbreviated version of the legal description to help identify the property. The deed is the guiding document.

One Last Thing

It is also important to remember to provide subsequent deeds showing any parts of that land that was sold off. For example, if your original deed in 1977 showed you owned 20 acres, but you sold off 5 acres in 1990, we need to see both deeds so we may properly grant the original property and fund the trust.

If you have questions about revocable living trusts and why they are a helpful tool to protect your assets, please don’t hesitate to contact us.

Four Ways to Be Kind to Your Lawyer

I spent a lot of time with my grandparents as a kid. They lived in a log cabin in the county, and the only way to describe their (When I say “their,” I mean my grandmother; my grandfather probably never noticed.) decorative style was “eclectic.” This included Norman Rockwell paintings, Zane Grey books, obnoxious timepieces, afghans, a huge console TV, and various things to remind them of their youth.

One of her more fascinating pieces was a thing to protect the table from hot pans (I would probably now call it a trivet). It hung on the wall next to a large wooden paddle. It had a (strikilawyerngly sensual, for the time) image of Mae West, taken from her 1937 movie “Every Day’s a Holiday.”

As a nerdy kid, I often wanted to point out the odd apostrophe, but I didn’t because Ms. West was so intimidating. I now understand that the apostrophe is correct. I am still intimidated by Ms. West.

I have thought about that that wall hanging recently, because it seems like every day really is a holiday now. We now have “National Pancake Day” and “Bubble Bath Day” and “Winnie the Pooh Day.”

Today is no exception: It is “Be Kind to Your Lawyer” Day. As a lawyer, you can imagine, I’m a fan of this holiday. If you do have a lawyer and you want to be kind to him or her, forget about flowers, gift cards, or a cool lawyer coffee mug. The best way to be kind to your lawyer is to make his or her job easier.

So here are four ways you might be kind to your lawyer today.

Leave A Detailed Message

I get many, many phone calls per day; some are from clients, some are from potential clients, and some are from people just wanting to kick the tires.

I try to answer every call that I can, and I want to call everyone back as soon as possible. (I really do.) I don’t mind talking to people who won’t hire me, because I can usually understand their situation quickly and give them some good advice about how to proceed. That’s one of my favorite things about being a lawyer—I can think about something and give some good advice.

But I can’t do that if I have no earthly idea about why someone is calling me. I am significantly more likely to call someone back quickly if I know what they need.

The message doesn’t need to be lengthy, but it does need to be more than “Hey, can you call me back.” If I know why someone is calling, I can take the time before the call to review their file and, if necessary, do a little research, which makes the return phone call much more productive for everyone.

Do What Your Lawyer Tells You to Do

Lawyers, in my experience, are not always the smartest people in the room. Neither are they the wisest people. They are almost certainly not the people you want to ask for advice in every aspect of your life. But when it comes to your case or your legal issue, you need to follow your lawyer’s instructions.

When you’re in the middle of a court case, you have to live under a microscope. You have to cross every “t” and dot every “i,” as they say. (Although, thankfully, almost no one uses this worn-out cliché.) It’s not enough that you continue to be a good person. It’s not enough that you are honest. (Of course, you shouldn’t be less than this.) The law is usually pretty clear in most instances; it’s the facts and following procedure that can change the game.

In the event that a lawyer instructs you to do something illegal or obviously immoral, you shouldn’t ignore them; you need to fire them. Most of a lawyer’s worth is his or her advice, so you’ve got to be able to depend on that.

Tell the Truth

Over the last 800 or so years, our legal system has developed in such a way that it’s pretty good at getting the truth.

If there are two good lawyers on a case and a judge that cares, you will not be able to get away with a lie. It will find you out, and that typically happens at a particularly inopportune time, when you’d like to be believable.

If you have lied, the best thing to do is let your lawyer know immediately. It will save a lot of headache.

Do not Fail a Drug Screen for Methamphetamine

That’s pretty much the extent of it. Just don’t.