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.

Everyone understands that the divorce process causes emotions to run high and people often act out of character by reacting irrationally. These irrational reactions and behaviors can have a detrimental effect on your custody case. The court will evaluate your behavior in its entirety throughout the proceedings when determining custody.

To begin when determining the placement of a child, the best interest of the child is always considered. For more details on the criteria the courts consider, see our past blog, about child custody.

No matter what type of custody arrangement you are fighting for—full, joint, weekends, etc., the court will evaluate all of your behavior. A good rule of thumb is to behave as if the judge were standing next to you each time you have any form of communication with the children and/or the other parent. This includes face to face interactions, phone conversations and text messages. This is also a good rule of thumb to keep in mind when making social media posts. Social media posts can be particularly devastating even if you later regret it and delete the post, it’s already out there and you can almost guarantee that someone has a screenshot of it. Also, avoid talking negatively about the other parent when they are with you. Kids tend to repeat and mimic everything they see and do and after all this is their mom or dad. It is always best to take the high road. The children can often feel torn and forced to choose one parent over the other.

Remain active in your children’s activities and schedules. Just because you and your ex can no longer be married, you can co-parent (see our past blog about successful co-parenting). Now is more important than ever for your children to see you at their ballgames, plays, and other activities. The courts will also take note of your continued involvement and commitment to your kids.

You are ready to move on to the next chapter in your life, but it is best to avoid moving in with your significant other. Courts are reluctant to put kids in this situation and do not appreciate children being exposed to significant others while a divorce proceeding is going on. Children have a hard time understanding that their mom or dad’s love has transferred to another person and could feel uncomfortable around the new partner.

Just as you shouldn’t criticize your ex in front of the children, do not criticize him or her in front of family, friends, co-workers, etc. You can always assume that your comments will get back to the other person.

Never deny contact, such as telephone calls, texting or social media with the other parent when the children are with you. The judge will see this as alienation of affection. Again, you don’t want the kids to feel as though they have to choose one parent over the other.

Never, never take the children out of town without telling the other parent. Besides showing disrespect to the other parent, this could be considered kidnapping and result in emergency orders restricting or terminating your parenting time or custody. According to the FBI, “By law (specifically the 1982 Missing Children’s Act), any person younger than 18 whose whereabouts are unknown to his or her legal custodian” is considered to be a missing person. When a child is believed to be abducted and taken across state lines, the FBI can become involved.

The same rule as above applies to removing children out of daycare and/or school. Even if you are the primary custodian, the children should stay in school unless there is a valid reason for the absence that has been discussed with the other parent, i.e., doctor’s visits, dental appointments.

If a temporary custody, order and child support have been put in place until a final decision has been made, be sure to follow it and pay the child support as ordered.

Finally, follow your attorney’s advice throughout the entire process. This is a stressful time and you are often not making decisions with a clear head. Your attorney will keep you focused on the ultimate goal of surviving the divorce process while protecting your rights to your most valuable asset—your children.

When fighting for your custodial rights, hire Kevin Hickey Law Partners because there are never any guarantees in custody battles. We have the experience in family law matters and are here to help you.

When obtaining a marriage license in Arkansas you will have to choose which type of marriage you wish to obtain. Either a “regular” marriage or a covenant marriage.

1) A regular marriage is just what it sounds like. It is a conventional marriage between two consenting adults along with other requirements such as:

• Both parties are old enough to legally marry within the state (over the age of 18 or parental consent is required for parties age 15 to 17)

• Both parties are capable of entering the marriage both physically and mentally

• Consent to marry was not obtained through fraud

• Neither party was forced to marry the other

• The marriage is not incestuous

2) A covenant marriage involves a few more details, which results in it being a bit harder to obtain a divorce. Only three states Arkansas, Arizona and Louisiana offer a covenant marriage option. A covenant marriage sounds like something that was established in the 1800s, but it was actually only passed into law in 1997. Louisiana became the first state to pass such a law. In 2001, Arkansas passed the Covenant Marriage Act.

The two-tiered covenant system of marriage was designed to strengthen the family. Some studies have shown this type of marriage has had some success. Couples receiving counseling are less likely to get divorced and other communities are reporting a decline in divorce rates. Although, Arkansas is still reporting one of the highest divorce rates in the nation, this may not be reflective of the couples that choose to obtain a covenant marriage.

A covenant marriage requires premarital counseling before getting married and getting a divorce. However, abuse, felony, adultery, abandonment, or long periods of separation are conditions accepted for obtaining a divorce. Covenant marriages try to establish a renewed commitment to having a long-term marriage. Therefore, quickie divorces are not possible. 

Additionally, the act allows couples that are already married to execute a declaration of intent to designate their marriage a Covenant Marriage by signing a recitation and an affidavit after receiving counseling (the counselor must attest to the counseling). Finally, the intent must be filed with the official who issues marriage licenses in the county of which the couple lives.

The bottom line of covenant marriage laws is that a couple cannot get a divorce easily. A no-fault divorce would not be an option. A no-fault divorce allows a spouse to file for a divorce without proving any fault on the part of the other spouse. The most common reason is “irreconcilable differences” or an “irreparable breakdown of the marriage.” A covenant marriage would require a more detailed reason for divorce.

A third type of marriage is a common law marriage. Many states recognize common law marriages such as our neighboring state of Oklahoma, but Arkansas does not if the couple has only cohabited in the state of Arkansas. Arkansas has never recognized common law marriage. Few circumstances will allow the state of Arkansas to recognize such a marriage:

• If the parties gained that status in another state. For example, if the couple lived in Oklahoma and had done all things to establish a valid common law marriage there, Arkansas would recognize it as a “regular” marriage.

• Each partner signed power of attorney papers while in the relationship.

Keep in mind that the date of actually declaring the specific type of marriage can be established by the court. This is why it is a good idea to sign durable power of attorney and medical power of attorney papers to connect a date to the common law marriage claim.  Dividing assets when a couple separates after cohabiting for several years if no common law marriage has been established can be a real challenge. Additionally, if one of the spouses dies, it can be an even bigger problem. If a couple cohabited together for 20 plus years, but never really established a common law marriage by a power of attorney, there is a strong chance he or she will not receive any of the deceased spouses retirement benefits.

It is imperative that you protect yourself, we will be happy to assist you in developing your power of attorney and all your marriage law needs. Contact Kevin Hickey Law Partners today.

After the divorce is finally settled, your first instinct might be to cut all ties with your ex and move on to the next chapter in your life. If you have minor children, that is not possible. You have a lifelong connection regardless of your feelings about him or her. It is in the best interest of the children to move past the emotions and come up with a plan to successfully co-parent. Continually holding animosity towards one another creates a stressful situation for both you and your ex, but more importantly, your children.

Successful co-parenting after divorce helps the children have a feeling of stability, creates healthy relationships with both parents, lessens the chances of the children feeling abandoned by a parent, allows for a faster adjustment to the new family dynamic, less behavioral issues and many more positive influences in the children’s lives. Additionally, remember you are setting an example for your children. This is your opportunity to be a positive role model to show them how to work together in adversity.

The following tips are helpful in establishing successful co-parenting:

• Keep it professional – Think of it as a business deal. We have all worked with people we do not necessarily like, but because it was business, we successfully got the job done. This is exactly how you should consider co-parenting. Keeping communication business-like lessens the chances of saying or doing things that push emotional buttons. Keep it brief and to the point.

• Communication, communication, communication – These days there is really no excuse for lack of communication. If in in the beginning it is hard to see your ex face-to-face and communicating in a calm manner, communicate via texting and email. Be sure to review those texts and emails before sending to avoid a misunderstanding.

• Share information about important issues and events – No one wants to be kept in the dark about important issues and events regarding their children. Remember the old saying, “Put yourself in their shoes.” You wouldn’t want to be left in the dark about these things, so why would your ex. Create a shared calendar through Outlook or Google Calendar. Utilizing a shared calendar keeps everyone on the same page. If your kids are old enough, allow them access as well. If it is your ex’s visitation, communicate about the need for a baseball mitt or dance shoes ahead of time. Add these items to the shared calendar as well. It is difficult for many parents to accept the fact they will not be there for every moment of their child’s life, the calendar will allow them to have hands-on, instant access to their children’s schedules.

• Never Assume, don’t tell, discuss – Keep an open dialogue. Never assume the other parent knows or does not care to know, definitely don’t tell your ex how it is going to be without discussion. Discuss all things child-related together.

• Maintain similar rules – To successfully co-parent there cannot be two sets of rules at each parent’s home. You don’t want your children playing one parent against the other. Avoid being the “easy parent.”

• Stay flexible – Life happens. Inevitably, you will be late for a child exchange with the other parent and vice versa. Try to remember that and stay flexible when things don’t go exactly as planned. You both should try to the best of your ability to be on time, but when things happen like working late, being stuck in traffic and so forth, be forgiving. Also, have the kids ready for pick-ups and drop offs.

• Avoid confrontation in front of the kids – Of course, co-parenting is not always going to be rainbows and butterflies, but try to keep any disagreements between one another in private and away from the children. Definitely do not speak ill of the other parent in front of the kids. This destroys everything you have worked for to create a successful co-parenting environment.

• Hire a parent facilitator - If you absolutely cannot work together, consider working with a parent facilitator. A facilitator is an unbiased, third party that will help you work out parenting issues together. Think of them like a referee or coach. The parent facilitator allows you to reach amicable resolutions and agreements together without going through the court process.

Kevin Hickey Law Partners will help you work through the divorce process, custody agreements and co-parenting success. Call us today.

 In Arkansas, generally all property acquired during a marriage belongs to both parties—including a business. A business is subject to equitable property division as it is considered the marital estate. Some situations regarding business interest are cut and dry because the business interest is a minimal asset and others are not as they are a significant asset.