Do I need to hire a lawyer?

It is always wise to hire an attorney.  While there are options out there for a “do it yourself divorce”, this is rarely, if ever, a good solution for either party.  If there are any disputes about whether or not there should be a divorce, or complications regarding property, taxes or child custody, and especially if your spouse has hired a lawyer, you may need a professional to represent you.

What is divorce?

Divorce is defined as the legal dissolution of a marriage. Issues associated with divorce include but are not limted to alimony, child custody and child support.

What are grounds for divorce in Arkansas?

Grounds for Filing: The Complaint for Divorce must declare the appropriate Arkansas grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:

The circuit court shall have power to dissolve and set aside a marriage contract, not only from bed and board, but from the bonds of matrimony, for the following causes:

No-Fault:

(1) When husband and wife have lived separate and apart from each other for eighteen (18) continuous months without cohabitation;

Fault:

(1) Impotence;

(2) Incarceration;

(3) Habitual drunkenness for one (1) year;

(4) Cruel and barbarous treatment;

(5) Offer such indignities to the person of the other as shall render his or her condition intolerable;

(6) Adultery.

(Arkansas Code – Title 9 – Chapters: 12-301)

What is distribution of property?

Distribution of property deals with which spouse gets to keep what items of marital property, as well as division of marital debt.  Arkansas is an “equitable distribution” state, which means that the marital property shall be divided in an equitable fashion.  Keep in mind that equitable does not mean equal, but rather what is fair to both parties.  Parties are encouraged to reach a settlement on property and debt issues otherwise the court will determine a fair distribution.

What is Alimony?

Alimony (also called “spousal support”) is payment from one spouse to another for support after a divorce or during a separation.  There are three types of alimony: permanent, temporary or lump sum.

What is child custody?

Child custody deals with who has custody of the children after a divorce or separation. There are four types of child custody: legal, physical, sole and joint.

How is child custody determined?

Arkansas courts will do everything possible to help lessen the emotional trauma of divorce when minor children are involved.  Parents are encouraged to reach an agreement regarding custody, but if they cannot, the courts will determine custody at their own discretion.

The custody determination shall be made solely in accordance with the welfare and best interest of the child.  Sex of the parent is not an automatic determining factor.

Many factors are considered when determining the best interest of the child. Those factors can include the preferences of the child if the child is of a sufficient age and capacity to reason, regardless of chronological age; what roles the parents have played and what roles they will play; and any history of domestic violence.

What is child support?

Child support is payment from one spouse to another for the support of children after a divorce or separation.  Arkansas child support guidelines use the Percentage of Income Formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child.  This method simply applies a percentage to the income of the parent according to the number of children requiring support.

What is paternity?

Paternity deals with who is recognized as the father of a child. Paternity can be important when trying to establish child support payments.

What is adoption?

Adoption refers to the process by which an adult becomes the legal parent of a child who is not his or her biological offspring. There are five types of adoption: international, independent, identified, relative and agency.

WILLS, TRUSTS AND ESTATES

Can a will be changed?

Yes, if the person making the will is competent to make changes.  A new will or “codicil” can be executed to create a new scheme for the distribution of property.

Can I appoint a guardian for my children in my will?

Yes. This is one of the many benefits provided by a will.  A court is not bound by the naming of a guardian in your will, however, they will consider it.  And it is often the only way to make your wishes known in an official capacity after you die.

Can I dispose of or distribute my property any way I wish?

For the most part, yes.  However, if you indicate that you want your property collected and burned, the law might not give consideration to that request.  You also cannot avoid any protections given to others by law (for instance, a spouse’s rights, community property and special protections granted to surviving children).

Can more than one person be named as personal representative?

Yes, you may appoint co-representatives or a secondary representative, but this can sometimes cause problems during probate.  You should carefully consider nominating more than one representative.  If you do nominate more than one, you need to believe that they will be able to cooperate with one another in matters regarding your wishes and the estate.

How can a person contest a will?

The person must file relevant documents with the probate court.  The person must be interested (usually an heir under the will or law). There are time limits associated with contesting a will.  You must typically have grounds to contest the will.  Valid grounds can include incapacity, fraud, undue influence and duress.  Being unhappy with the distribution of property is not considered a valid ground.

When should I make a will?

The best answer to this question is that a person should make a will right now because you do not know what tomorrow holds.  A person should review his or her estate plan occasionally, especially after certain life events (marriage, divorce or winning the lottery, for instance).

Who needs a will?

Most everyone needs a will since most everyone dies possessing property.  State law decides what happens to property in the estate of a person who dies without a will.

Someone who leaves behind a girlfriend or boyfriend or even a fiance’ will not be able to provide them with any inheritance unless there is a valid will.

Who should draft my will?

Only an attorney can legally draft a will for a person, unless a person drafts his own will.  Personally drafted wills are often incomplete and therefore invalid under state law.  An invalid will is worthless.  Kits for writing a will are normally not state specific.  If the will doesn’t follow state law, it will not be valid.

Is a Will private?

No. When a will is filed with the probate court, it becomes public record.

If I have a will, must my estate pass through probate?

Whether you have a will or not, your property must pass through the probate process.

What is the difference between a will and a trust?

A will must be administered through probate court whereas a trust avoids probate court.  A will becomes public record whereas a trust remains private.  Also, upon your death, a trust allows property to be transferred without attorneys, the court system or probate.

A trust must be properly funded to be effective.  Funding means that the property you wish to be distributed to your heirs must be titled in the name of the trust.

Do I lose control of my assets once they are funded to the trust?

A revocable trust allows you to transfer all of your property to the trust but continue to use and manage them during your lifetime.  After your death, your trustee will transfer ownership to the heirs named in the trust.

Whom can I appoint as the Trustee?

You can serve as your own Trustee, you and your spouse can be co-Trustees or a trusted family member or friend may serve as Trustee.

 

CRIMINAL LAW

What are my rights if I have been accused of a crime?

The US Constitution guarantees those accused of a crime a number of rights.  These rights include: the right to remain silent, the right to an attorney, the right to reasonable bail, the right to a fair trial and the right to be informed of the charges against you.

You are also presumed innocent until proven guilty.  This means the prosecution has the burden of proving, beyond a reasonable doubt, that you committed the criminal acts in question.

There are also laws regarding search and seizure which require law enforcement to obtain a search warrant. However, there are some circumstances which allow police to search without a warrant.

What should I do if I have been arrested?

Answer all questions about your identification, such as name, address and birth date.  Do not lie. You have a right to refrain from answering self incriminating questions (the right to remain silent) but be cooperative.

What should I do if I get a call that a loved one that has been arrested?

Gather as much information about the arrest and write it down.  The following questions may be useful: Name, birth date and social security number of the arrested person (to verify it is your loved one); what has s/he been charged with?; What law enforcement agency made the arrest?; Where is the arrested person being held?; Has bail been set and, if so, what is the amount?

How do I get out of jail after an arrest?

If bail has been set, the only way to get a person out of jail is to pay the bond for his/her release. A bail bond is like insurance; it means that the suspect agrees to appear in all subsequent legal proceedings. In certain criminal cases, bail may be denied.  If the judge believes there is a high risk that the defendant will flee, or if s/he has been charged with a serious crime like murder, bail may be denied.

Should I hire a criminal defense attorney?

The Constitution guarantees every criminal defendant the right to an attorney, so it is very important that you have competent legal representation.  A criminal attorney is your best asset after being charged with a crime.  A criminal attorney knows the applicable laws, can review your situation and provide you with the options available to you. A criminal attorney will work to protect you and to achieve the best possible resolution to your case.

What is the difference between a misdemeanor and a felony?

Generally speaking, a misdemeanor is a less serious offense where the maximum penalty is one year or less in state prison and a felony is a more serious crime that can result in jail time for more than one year.

What types of punishments do I face if convicted of a crime?

Sentencing can vary depending on many factors, including location of the case, the crime, the judge and other specifics. In some cases a punishment for a particular crime is governed by the federal sentencing guidelines and a judge does not have a lot of discretion in determining the punishment. In other cases, the judge determines the punishment.

The most common punishments are: incarceration, fines, restitution, probation and community service. If convicted of DUI or DWI, you may be required to attend a DUI/DWI school or a drug/alcohol treatment program, have a Breathalyzer installed in your car or face driving sanctions.


BANKRUPTCY

Will my creditors stop harassing me?

Yes they will! By law, all actions against a debtor must cease once documents are filed. Creditors cannot initiate or continue any lawsuits, wage garnishments or even telephone calls demanding payments.

Who will know?

Bankruptcy filings are public records. However, under normal circumstances, no one will know you went bankrupt. The credit bureaus will record your bankruptcy and it will remain on your credit record for up to 10 years.

I was bankrupt before. When can I file again?

A person can file Chapter 7 again if it has been more than 8 years since the previous filing.

Can I keep any credit cards?

Whether a debtor keeps credit cards after filing bankruptcy is up to the credit card company.

When will I be discharged from bankruptcy?

The debtor is discharged 3-5 months after the bankruptcy is filed. At that time all debts (with some exceptions) are written off.

Can my boss fire me for filing bankruptcy?

No. Federal Law prohibits any employer from discriminating against you because you filed bankruptcy.

How much am I allowed to keep?

You are allowed to keep certain assets, depending on state law.

What debts are erased by a bankruptcy?

Most unsecured debt is erased in a bankruptcy except for:

  • Child support and alimony
  • Debts for personal injury or death caused by your drunk driving
  • Student Loans
  • Income Tax Debt