As with any court proceeding, it is beneficial if you and the other party can agree on a plan beforehand. It is even more important for a divorcing couple to agree on a parenting plan. A parenting plan is a document that outlines how the children will be raised when the two parents do not live together. The plan allows parents to resolve disagreements and document what you do agree on when it comes to parenting your children. The plan is included with your petition for divorce and includes a visitation schedule, custody statements, and how you plan to resolve disagreements. If you don’t do it, the family courts will do it for you.

The first thing that the court looks for when looking at a parenting plan is how you will create a stable, supportive environment for the children. Plans that best meets the children’s physical and emotional needs will be well received by the courts. The more detailed and thought out, the better.

Good Parenting Plans Include:

• Visitation Schedule – Under normal circumstances, the courts want to see that the children are spending ample time with both parents. Therefore, you plan needs to show a regular parenting time rotation pattern. If that will not work due to work schedules or other uncontrollable circumstances, then you will want to make sure the visitation plan includes longer amounts of time when that parent can see the children. Where will you pick-up and drop-off the children for visitations? Remember, in order to avoid involving public school personnel and to avoid disruptions to the educational atmosphere in public schools, Arkansas Code Title 9. Family Law 9-13-104 prohibits transfer of a child between the child’s custodial parent and noncustodial parent on the real property of a public elementary or secondary school on normal school days during normal school hours. This code does not prohibit one parent from transporting the child to school and the other from picking up at the school if prior approval has been obtained from the school’s principal.
• Activity/Event Schedule – With children comes many school and extracurricular activities. Your plan should include a way that you will communicate these things to one another. It is easier than it has ever been to create a means of sharing calendars with one another, so everyone is in the loop avoiding excluding one parent from these opportunities.
• Expenses – You need to decide how child-related expenses will be covered. This should include things like unexpected medical expenses, extracurricular activity fees like dance tuition and costumes, sports fees and equipment costs, and other unforeseen expenses.
• Major Decisions – Although one parent may have primary custody, normally both parents will want to be involved in major decisions regarding the children. This will include, but certainly not limited to, education, religious practices and health care.
• General Parenting Practices – Remember the more detailed the plan is, the better. Anything you deem important to raising your children should be included---curfew, dating, grade expectations, discipline, driving, buying a car for the child, just to name a few. When your child is small, some of these things may not be at the forefront of your thought-process, but the more that can be determined early on, the better.

Now that you have your plan, you will want to leave a little room for flexibility. Life happens, things change, and unexpected occurrences take place. Yes, you should follow your plan as closely as possible, after all that is why you created it, but do not be so staunch about it that you become hard to work with.

 Kevin Hickey Law Partners has years of experience assisting couples in writing parenting plans. We have helped couples write plans together or we have worked individually with a parent if the couple’s relationship is not amicable. It is ideal if we can assist the couple together, since this is only the beginning of parenting decisions you will have to make together throughout raising your children. However, if a couple cannot work together, each parent will submit a plan separately. Either way the more detailed your plan is, the better it will be. It is difficult to think of every detail that you will encounter when raising children, let our experience help you with the details.

When couples split, they try to make sure certain members of the family still see the children. Even if the relationship is strained, grandparents get consideration from their former son or daughter-in- law. While an important relationship, the grandparents are not the only family members who are important to your children.

I’ve seen large families, bonded by holidays together, birthdays, and Sunday afternoons treat cousins like brothers and sisters; I’ve seen aunts and uncles function in a mother or father role, or, depending on age, like an older sibling. During a divorce, these bonds help children find security and comfort in new circumstances and lifestyles. These crucial relationships must be maintained.

Schedules after divorce fluctuate, and one parent may not be able to always attend to his/her side of the family and the family functions. Try to maintain a connection with your former extended family. This connection may not be affable, but if your kids play well with their cousins and you have them for the weekend, try to give them a few hours. This sounds like I’m asking too much from parents who no longer see their children on a daily basis, but try to accommodate when you are able. I’m not saying trade your hours with them every weekend -- just be open to a civil relationship with their other family members so that your children don’t lose out of those special childhood relationships. You cannot anticipate when an aunt or uncle will say something that helps your child. You do not know how important the sleepover with the cousins might be to helping them feel normal when the rest of their world is spinning.

Children need to know they have the support of friends and family while their home life changes drastically. Losing relationships at the same time as they lose the family they once had hurts them during the process. One day, especially when they are older, they will recognize the thoughtfulness, and sacrifice, their parents gave towards them by nurturing familial bonds.

One thing is for certain, there is never anything certain in life. You have agreed on your child custody arrangement and things have moved along just fine until an unforeseen event occurs in your life. Life events like moving out of state, one parent becomes extremely ill or the financial situation changes for a parent, plus many, many more life-altering reasons are all reasons that life interrupts you normal routine and a new child custody agreement will need to be reached. Generally, child custody cases are never final. If both parents agree to a new custody agreement and the courts find it reasonable, then it is normally approved IF it is in the best interest of the child. The best interest of the child always controls. The courts do not care much about what is convenient for the parents if the child’s best interest isn’t first and foremost. Additionally, there are times that changing child custody agreements are not wrapped with a pretty bow and everyone is happy. Some circumstances change that are actually harming the child to stay in the current custody arrangement—a parent becomes abusive, substance abuse enters the picture, poor lifestyle choices, the list goes on and on. During these times, it is important to meet with your attorney and get things moving along as quickly as possible to avoid further physical or mental harm to your child.

One particular case, Stephanie Harris, Appellant v. Stephen Harris, Appellee (No. CA09-639, decided February 17, 2010) determined the children’s best interest was to change the custody arrangement to the appellee “who offered them hope of academic and behavioral improvement and whom the court found much more credible than appellant regarding efforts to deal with the girls ‘dismal performance.’” The court found “compelling evidence” that the minor children would be in a much better situation in Mr. Harris’ custody rather than Ms. Harris’. Although the ultimate victor in this party had overwhelming evidence and multiple occasions of blatant disregard for the initial custody agreement by the appellant, it still took the course of a nearly two-year court battle for him to convince the court he was the better custodial parent. This case further proves that the courts do not take their duty of determining the best interest of the child lightly.

In cases such as this one when parents cannot agree, some of the things a judge will consider are:

• each parent’s stability
• each parent’s physical and mental health
• the child’s physical and mental health
• the child’s relationship with siblings and extended family

The judge will consider many other factors. In the case mentioned, the courts considered the following:

• the children’s failing grades in school;
• the children’s behavior problems in school;
• consistent interference in visitation by Ms. Harris;
• Harris’ failure to show up for a show-cause hearing in 2005;
• Harris was remarried and had a loving, stable environment to provide the children;
• Harris had stable employment;
• Harris maintained constant email communication with the children’s school while they were living in Atlanta with their mother;
• Harris allowed different male companions to spend the night at her home when the minor children were present violating the divorce decree;
• Harris failed to follow the decree’s allowance for unrestricted phone calls by Mr. Harris on a daily basis.

The list goes on and proving what Ms. Harris did wrong and Mr. Harris did right. The point is that you must at all times consider the best interest of your children, because the court will.

Parents who are able to amicably reach an agreement on their own, can simply submit a custody agreement (also called a ‘parenting plan’) to the court. Again, the judge will ensure the agreement reflects the best interest of the child. Be sure to check out next week’s blog about writing a successful parenting plan.

Child custody arrangements (even the “easy” ones) are complex and more often than not require an attorney to draw up the paperwork. If you are in need of modifying your child custody agreement, contact Kevin Hickey Law Partners today.

Many people are often under the misconception that their pensions and retirement funds are off limits when divorcing. That is typically not the case, because pension and retirement funds are divisible just like any other marital asset. A pension earned during marriage is generally considered to be a joint asset of both husband and wife.  Arkansas strives to maintain fair and equitable division of marital property. In accordance with Aransas law, all retirement accounts are subject to a 50/50 split between the spouses, regardless of who earned them.

Whose name and who made more money in the marriage are mute points when dividing pension and retirement benefits. Generally, any amount deposited in a pension and/or retirement account during the marriage will most likely end up split, unless a prenuptial agreement was  recorded that specifically names retirement funds and/or pensions as separate property. Division applies to:

• pension benefits during a marriage;
• retirement savings accounts that were funded during a marriage; and
• the earnings on these accounts that accumulated during the marriage.

A court order is necessary for someone to receive retirement funds and/or pensions. It must generally be done at the time of the divorce when the other marital assets are divided. The court order or court-approved settlement requiring a spouse to pay a former spouse retirement funds and/or a pension is called a domestic relations order.

In Arkansas, divisions of retirement accounts is typically handled through a Qualified Domestic Relations Order (QRDO). Since retirement accounts are held in only one person’s name, a QRDO establishes an additional named payee on the account per the U.S. Department of Labor. Note: A QRDO is only used for company-managed accounts like a 401(k) or 403(b). The Internal Revenue Service also uses QRDO’s to identify retirement assets that are legally allowed, and sometimes managed, to be used to pay child support or alimony.  If you are ordered to split up a 401K or Roth IRA account, if a QRDO is in place, the IRS recognizes the early withdrawal as pursuant to a divorce decree. You will not incur additional fees, taxes or financial penalties for early withdrawal. However, the spouse receiving the money may be liable for taxes unless he or she appropriately reinvests it.

The only retirement accounts that are divided differently are Social Security and Tier 1 Railroad Retirement benefits. A divorced spouse may be entitled to a reduced Tier 1 spouse benefit if the marriage lasted ten consecutive years, both spouses have been 62 for at least a month and the divorced spouse is unmarried. If the spouse has not retired yet and still working at the railroad, the former spouse may receive a spouse annuity two years after the divorce if both spouses are 62 and the railroad spouse is fully insured through Social Security based on earnings. Since, the award is calculated based on Social Security pay, the divorced spouse’s annuity payments are less than what would be received if the couple had remained married. A court CANNOT award a divorcing spouse part of a Tier 1 Railroad benefit as part of a property settlement. The Railroad Retirement Board oversees the railroad retirement benefit system and federal laws regulate railroad benefit division in the divorce. Receiving Social Security retirement benefits depends on a number of stipulations like the receiving spouse must be unmarried, age 62 or older, the ex-spouse is entitled to Social Security retirement or disability benefits; and the benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work. There are many other stipulations and requirements when determining Social Security benefit rights.

As you can see, the division of retirement funds and pensions can be quite complex and costly if not handled properly. Aside from real estate, retirement plans are usually the largest asset in a marriage. That is why hiring a reputable, experienced attorney like Keven Hickey Law Partners can give you the peace of mind needed during this difficult process while insuring your interests are protected. We will conduct a complete investigation in an effort to identify all retirement accounts and other benefits. Additionally, we can help you manage your assets and protect them through the process. We will protect your interests and facilitate a smooth division of assets.

Sometimes bankruptcy can be an unfortunate result of divorce of vice versa. Divorce is commonly cited as the leading cause for bankruptcy. If you find yourself in this situation, here are some important things you should know:

1. In Arkansas, a married person can file for bankruptcy by themselves, but the spouse will still be liable for any joint debts. Therefore, if you are going through a divorce and you find out your spouse is filing bankruptcy; you will need to make sure of which debts you are jointly responsible for. The fact that one spouse discharged the debt, does not mean the other is discharge and may show on the other spouse’s credit report. 

2. It is not recommend filing for divorce and bankruptcy at the same time. Which one is filed first depends on the situation. In most situations, if the divorcing couple is amicable, it is best to file for bankruptcy first. This allows both parties to share the costs of the attorney and filing fees and could help protect you from paying joint debt. 

Additionally, married couples filing jointly in Arkansas are allowed to each claim a full set of exemptions, unless otherwise specified. Thus, double exemptions for property. For example, Arkansas allows an exemption for tools of trade such as implements, books, etc. up to $750; a married couple can claim a total of $1,500. For more information about Arkansas bankruptcy exemptions and which federal exemptions can be filed contact Kevin Hickey Law Partners for a detailed list and consultation. 

Filing for bankruptcy first simplifies the division of assets in divorce, because the bankruptcy process typically divides them. 

3. There are two types of bankruptcy
4. Chapter 7 – A liquidation bankruptcy that gets rid of your unsecured debts such as credit card debt and medical bills. The discharge usually only takes a few months; therefore, it can be completed quickly before a divorce.

Filing for Chapter 7 bankruptcy requires you to pass the Chapter 7 means test, which determines whether your income is too high. This helps eliminate high wage earners from filing for Chapter 7. 

To perform the means test, you will first need to determine whether your income is more or less than the median income in your state. Arkansas’ median income is $37,081 for a one-member household; $46,495 for a two-member household; $50,755 for a three-member household; $58,333 for a four-member household and continues to increase the more household members there are.

To calculate your income, average your monthly income over the last six calendar months. Then you need to multiply your average monthly income by 12.

If your income is over the median income for your household size, then you can calculate based on your income and expenses. Expenses that can be deducted are obligations you are legally required to pay and expenses necessary for health and welfare.

If after deducting the allowed expenses from your income, your monthly income over the next 60 months is less than $7,475 then you pass the Chapter 7 means test. If your disposable income is between $7,475 and $12,475, then you must further calculate to determine if you have the Chapter 7 filing option. If over $12,475 you do not qualify.

1. Chapter 13 – You are required to pay back some or all of your debts through a repayment plan. This type of bankruptcy typically takes three to five years to complete, so you may be better off to file after the divorce. 

If you have already filed for Chapter 13 and are under a repayment plan and you decide to file for divorce during the repayment period, you can choose to cancel or restructure the bankruptcy plan. If you cancel, you agree to stop the agreed upon payment plan, but all debt you and your spouse have assumed will be your responsibility. Restructuring the plan divides it into two cases: one for you and one for your spouse. This allows you to handle eth bankruptcy separately.

 Bankruptcy and divorce can be quite complex. You and your spouse will each need your own attorneys. Even if you chose a divorce attorney together, he or she can no longer represent you because attorneys are barred from representing clients that have a conflict of interest with each other. The bankruptcy creates a conflict for the attorney because the clients are now opponents in another legal matter.

 Contact Kevin Hickey Law Partners for more details regarding your divorce and financial situation. Every case is unique, let our expertise and experience work for you.

Have you ever been in an unfamiliar situation that felt like everyone else knew what was going on but you? Were you too embarrassed to ask someone to explain what certain words or phrases meant? Many people can feel that way when it comes to law. At Kevin Hickey Law Partners, we want to make sure you understand everything that is happening in your case and the best place to start is understanding the language of family.

Action:  A lawsuit or proceeding in a court of law.

Affidavit:  A written statement that is signed under oath. Also known as declaration.

Agreement:  A verbal or written resolution of issues in dispute.

Answer:  The written response to a complaint, petition or motion.

Alimony:  A payment of financial support provided by one spouse to the other—also called spousal support or maintenance.

Alias Summons: Another summons, used when the original is not served on the defendant.

Annulment:  The legal proceeding in which a marriage is declared void, as though it never took place. This is only available under certain limited circumstances.

Appeal:  A legal action where the losing party requests that a higher court review the decision.

Best Interest of the Child:  The legal standard used to determine child custody, visitation and support.

Collusion:  This term has been used a lot lately in political news. It is an agreement between two or more persons that one of the parties brings false charges against the other. A couple may choose to do this in states that require more than “irreconcilable differences” as grounds for a quick divorce. For instance, one of the spouses may agree to use adultery as grounds for divorce, knowing that adultery was not committed just to obtain the divorce faster.

Complainant:  The one who files the suit---also known as petitioner or plaintiff.

Community Property:  A method of dividing marital property between spouses based on an equal 50/50 distribution. Arkansas is not a community property state, but courts are often willing to split marital assets 50/50 unless the distribution is considered un-equitable.

Complaint:  The legal paper that starts a case. Also called bill of complaint or petition.

Condonation: The act of forgiving one’s spouse who has committed an act of wrongdoing that would constitute grounds for a divorce. It is often used as a defense in divorce cases. The defense shows proof of this if the spouse that was wronged continues to cohabit with the spouse that committed the wrongdoing after learning of it.

Contempt:  Failure to follow a court order.

Corroborative Witness: A person who testifies for you and backs up your story. This person can corroborate your grounds for divorce.

Custodial Parent:  The parent who has physical custody of the child(ren).

Default: After a party’s failure to answer a complaint, motion or petition. A plaintiff’s divorce can be granted via a default and give everything requested.

Defendant: The person the case is brought against.

Discovery: A way for getting information from the other side or other people. This can be in the form of written questions (interrogatories) and depositions (usually in person and recorded).

Dissolution: The legal end of a marriage.

Equitable Distribution: The method of dividing marital property between spouses based on equitable and fair distribution, not necessarily 50/50.

Filing:  Giving the court clerk your legal papers.

Fault-based Divorce: One spouse claims the other spouse’s marital misconduct caused the marriage to end. Must be proven in court.

Fault Grounds:  Marital misconduct giving one spouse a legal reason to sue for divorce.

Grounds for Divorce:  The legal basis for a divorce that must be proven before the court can grant a divorce.

Home State:  The state where the child(ren) of the marriage lived with a parent for at least six months before a child custody, support, or visitation action was filed in court.

Innocent Spouse Rules:  IRS rules that protect one spouse from the other spouse’s tax fraud or other tax-related mix conduct.

Irreconcilable Differences:  The legal grounds for no-fault divorces or the term

Irretrievable Breakdown: The legal grounds for no-fault divorces.

Judgement: A court’s decision.

Jurisdiction:  The authority of the court to hear a case.

Legal Custody: A parent’s right to make decisions about a child’s health, safety and welfare.

Legal Separation:  A court order allowing spouses to live separate and apart while remaining legally married.

Marital Property: All property acquired during the marriage.

Motion: A request (usually made in writing) to the court.

Non-custodial Parent:  The spouse who does not have physical custody of the spouses’ child(ren).

No-fault Divorce:  A divorce that does not require one spouse to prove any wrongdoing by the other spouse. Arkansas is a no-fault state.

Non-marital Property:  Property that belongs to only one spouse and will not be included in any division of property—also called separate property. This is property acquired before marriage, through a gift or inheritance.

Notice:  A formal legal process of informing one spouse about a legal action or proceeding involving the spouse.

Order:  A court’s ruling or decision on a certain matter or legal issue.

Pendente lite:  Temporary arrangements for dealing with certain divorce-related issues, such as custody, child support, child visitation, alimony, and use and possession of the family home. These orders will remain in place until the court issues a final order is declared.

Physical Custody:  Refers to where the child lives on a regular basis.

Pro Se/Proper Person: Representing yourself in court without an attorney.

Qualified Domestic Relations Order (QRDO):  A court order giving one spouse a share of the other spouse’s petition or retirement funds.

Residency Requirement: The amount of time a spouse must live within a state or county before that spouse may file a divorce action in that state or county.

Service: Providing a copy of the papers being filed to the other side via hand delivery or another court-approved method of delivery.

Subpoena:  A form issued by the court requiring someone to appear in court and/or bring documents.

Temporary Support:  Payments made by one spouse to the other for financial support while the divorce action is pending.

Uncontested Divorce:  When the defendant agrees to the divorce and there are no issues for the court to decide about the children, money or property.

Venue:  The county where the case is heard.

Visitation:  The non-custodial parent’s right to spend time with the spouse’s child(ren).

Writ of Summons:  A form issued by the court directing a party to respond to a complaint, motion or petition.

These are words you will most likely hear when dealing with a family law case. Kevin Hickey Law Partners wants to make sure you understand from the beginning everything that is happening in your case. Call us today for a consultation.