Our law firm provides general
law services, including:
Estate Planning & Elder Law
Wills, Trusts, Probate, Guardianships,
Conservatorships, Health Care Proxies,
Powers of Attorney, Living Wills, and
Tax and Probate Avoidance
Social Security
Disability, S.S.I., Medicare, Medicaid,
Veteran's Benefits, and Assisted Living
Family Law
Domestic Relations, Divorce,
Adoptions, and Juvenile Cases
Business and Corporate Law
Incorporating, Limited Liability
Company, and Debt Collection
Real Estate Law
Contracts, Deeds, Notes, Mortgages
Personal Injury |
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| Legal Q&A - (Expand All) |
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Business Law
What is a corporation? A corporation is an institution that is granted a charter recognizing it as a separate legal entity having its own privileges, and liabilities distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Corporations exist as a product of corporate law, and their rules balance the interests of the management who operate the corporation, creditors, shareholders, and employees who contribute their labor. In modern times, corporations have become an increasingly dominant part of economic life. An important feature of corporation is limited liability. If a corporation fails, shareholders normally only stand to lose their investment, and employees will lose their jobs, but neither will be further liable for debts that remain owing to the corporation's creditors. Despite not being natural persons, corporations are recognized by the law to have rights and responsibilities like actual people. Just as they are "born" into existence through its members obtaining a certificate of incorporation, they can "die" when they are "dissolved" either by statutory operation, order of court, or voluntary action on the part of shareholders. Insolvency may result in a form of corporate 'death', when creditors force the liquidation and dissolution of the corporation under court order, but it most often results in a restructuring of corporate holdings. Although corporate law varies in different jurisdictions, there are four core characteristics of the business corporation:
* Legal personality
* Limited liability
* Transferable shares
* Centralized management under a board structure. (Wikipedia)
What is an LLC? A limited liability company (LLC) is a flexible form of business enterprise that blends elements of partnership and corporate structures. It is a legal form of business company that provides limited liability to its owners. It is a hybrid business entity having certain characteristics of both a corporation and a partnership or sole proprietorship (depending on how many owners there are). An LLC, although a business entity, is a type of unincorporated association and is not a corporation. The primary characteristic an LLC shares with a corporation is limited liability, and the primary characteristic it shares with a partnership is the availability of pass-through income taxation. It is often more flexible than a corporation and it is well-suited for companies with a single owner. It is important to understand that limited liability does not imply that owners are always fully protected from personal liabilities. Courts can and will pierce the corporate veil of corporations (or LLCs) when some type of fraud or misrepresentation is involved. (Wikipedia)
What is a Limtied Partnership? A limited partnership is a form of partnership similar to a general partnership, except that in addition to one or more general partners (GPs), there are one or more limited partners (LPs). It is a partnership in which only one partner is required to be a general partner. The GPs are, in all major respects, in the same legal position as partners in a conventional firm, i.e. they have management control, share the right to use partnership property, share the profits of the firm in predefined proportions, and have joint and several liability for the debts of the partnership. As in a general partnership, the GPs have actual authority as agents of the firm to bind all the other partners in contracts with third parties that are in the ordinary course of the partnership's business. Like shareholders in a corporation, LPs have limited liability, meaning they are only liable on debts incurred by the firm to the extent of their registered investment and have no management authority. The GPs pay the LPs a return on their investment (similar to a dividend), the nature and extent of which is usually defined in the partnership agreement. (Wikipedia)
What is an S Corporation? An S corporation, for United States federal income tax purposes, is a corporation that makes a valid election to be taxed under Subchapter S of Chapter 1 of the Internal Revenue Code. In general, S corporations do not pay any federal income taxes. Instead, the corporation's income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns. This concept is called single taxation; if the corporation is taxed as a C corporation, it will face double taxation, meaning both the corporation's profits, and the shareholders' dividends, will be taxed. (Wikipedia)
What is a C Corporation? A C corporation is a corporation in the United States that, for Federal income tax purposes, is taxed under 26 U.S.C. § 11 and Subchapter C (26 U.S.C. § 301 et seq.) of Chapter 1 of the Internal Revenue Code. Most major companies (and many smaller companies) are treated as C corporations for Federal income tax purposes. (Wikipeida)
What is Limited Liability? Limited liability is a concept whereby a person's financial liability is limited to a fixed sum, most commonly the value of a person's investment in a company or partnership with limited liability. In other words, if a company with limited liability is sued, then the plaintiffs are suing the company, not its owners or investors. A shareholder in a limited company is not personally liable for any of the debts of the company, other than for the value of his investment in that company. This usually takes the form of that person's dividends in the company being zero, since the company has no profits to allocate. The same is true for the members of a limited liability partnership and the limited partners in a limited partnership. By contrast, sole proprietors and partners in general partnerships are each liable for all the debts of the business (unlimited liability). (Wikipedia)
What is the Business Judgment Rule? The business judgment rule is an American case law-derived concept in corporations law whereby the "directors of a corporation . . . are clothed with [the] presumption, which the law accords to them, of being [motivated] in their conduct by a bona fide regard for the interests of the corporation whose affairs the stockholders have committed to their charge". (Gimbel v. Signal Cos., 316 A.2d 599, 608 (Del. Ch. 1974). To challenge the actions of a corporation's board of directors, a plaintiff assumes "the burden of providing evidence that directors, in reaching their challenged decision, breached any one of the triads of their fiduciary duty—good faith, loyalty, or due care". (Cede & Co. v. Technicolor, Inc., 634 A.2d 345, 361 (Del. 1993). Failing to do so, a plaintiff "is not entitled to any remedy unless the transaction constitutes waste . . . [that is,] the exchange was so one-sided that no business person of ordinary, sound judgment could conclude that the corporation has received adequate consideration". (In re The Walt Disney Co. Derivative Litigation, 906 A.2d 27 (Del. June 8, 2006). (Wikipedia)
Child Custody
Is non-custodial parent responsible for child support? In almost every case, yes. Only in rare circumstances would that not be the case. Child support is determined by a chart found in the Arkansas Code and is usually followed strictly.
Can both parents share "joint custody" of the children? If both parents agree to joint custody, it is allowed, but it is rarely ordered by the judge if the matter is contested.
Can the parents set their own visitation schedule? If the parents can agree, most of the time the judge will allow the agreement, as long as he determines that it is in the best interest of the children. However, if the matter is contested, the judge will usually set a schedule of visitation which divides the holidays and the summer and grants visitation privileges of alternating weekends to the noncustodial parent.
Can I terminate visitation for non-payment of child support? If the non-custodial parent has failed to pay child support or to visit the child for at least one year, the custodial parent may be able to terminate his rights to the child. The custodial parent must notify the non-custodial parent that they intend to terminate parental rights. The non-custodial parent has three months to pay a substantial amount of past due payments owed and to establish a relationship with the child. If they do not do this, this court may terminate if they find that it is in the best interest of the child. (Arkansas Code Annotated 9-9-220)
Divorce
How long does it take to get a divorce?
Where no part of the divorce is contested, a divorce can be obtained within 30 days. On the other hand, if property, grounds for divorce or custody of children is contested, it may take six to 18 months before the divorce can be completed.
What is a "no-fault" divorce? "No-fault" divorce laws mean that neither spouse needs to prove that the other has been guilty of any misconduct in order to obtain a divorce. Arkansas does not allow "no-fault" divorces. However, if husband and wife have been living apart for 18 months, the court will grant a divorce without a finding of fault on the part of either party. Ark. Code Ann. 9-12-301(5)
What is considered marital property? Marital property is all property acquired during the marriage, regardless of the name in which it is titled. Marital property does not include property that a person has inherited individually or property that they have received as a gift.
How do Arkansas Courts divide the marital property? Ark. Code Ann. 9-12-315 says that the Court shall divide the marital property with one-half to each party unless the Court finds such a division to be unfair. The statute then lists nine factors the judge should consider.
Are pensions, IRAs & retirement benefits marital property? Pension, individual retirement accounts, and retirement benefits acquired during the marriage are considered marital property and subject to division by the court upon divorce.
Can a wife return to her previous name after a divorce? Yes.
Can the amounts of child support or alimony be changed? Yes. The Court has the power to change the amounts based on a showing of a change of circumstances. These include such things as an increase or decrease in income or unexpected high medical expenses.
How does bankruptcy affect alimony or child support? The payment of alimony or child support cannot be avoided by a Declaration of Bankruptcy.
What is income tax treatment for child support and alimony? As a general rule, the person paying alimony can claim the payments as a deduction on Federal Income Tax returns. The person receiving the alimony payments must include the payments as income, (i.e. pay taxes on them).
Only one parent may claim a child as an exemption, and this is normally the party who provides more than half of the money necessary to support the child.
When may I stop paying alimony? Unless otherwise ordered by the Court, the liability of alimony automatically ceases upon the earlier of the following:
a. the person receiving alimony remarries, or
b. the establishment of a relationship that produces a child and resulting court orders regarding support and in the equivalent of remarriage. Ark. Code Ann. 9-12-312 (a) (b) (c).
Estate Planning
What must I know before I do my estate planning? You must know your natural heirs, what you own and to whom you want to leave your estate.
What is estate planning? Estate planning is planning for your future, whether you live too long or when you die. It involves preparing your last will, living trust, power of attorney and advanced directives.
Why does a person need a will? If you die without a will, the state will direct how your property will be distributed. All jointly owned property will go to the surviving joint owner. All property owned just in your name alone will, after your death, be probated, with one-third going to your spouse, if you have one, and two-thirds going to your children, if you have any. If you have no spouse and no children, everything goes to your parents, if they are alive; if they are not alive, everything goes to your brothers and sisters, if they are alive; if they are not alive, everything goes to their children. In addition to the other expenses your estate will incur in probate, your administrator will have to post a bond to serve. This is an additional expense you can avoid with a will.
What about a power of attorney? A power of attorney is an excellent document; however, it cuts with a two-edged sword. The word attorney originally meant someone who represented you or stood in your place. When you give someone your power of attorney, that person has the power to act for you. A durable power of attorney gives someone the power to act in your place even if you become incapacitated. Our firm tells clients that if you give someone your power of attorney and that person gets mad at you, you need to revoke the power of attorney or that person can sell all of your assets and do with the proceeds whatever that person chooses.
When is an estate large enough to justify a trust? If your estate is larger than $50,000 then we would strongly encourage you to consider a trust. One of the main benefits is to avoid probate expenses at your death. However, a secondary benefit of a trust is to avoid guardianship proceedings later in life.
If I have a living trust, do I need a will? Yes. Your will will serve as a safety net. It will catch anything that you do not get put into your trust during your lifetime and will pour it over into your trust after your death. A will can also provide for the guardian of your minor children should you die while you have minor children.
What should I put in my trust? We recommend that you put all of your property and estate in your trust except for retirement benefits. If you are married your spouse should be the primary beneficiary of your retirement benefits and the trust should be the secondary beneficiary.
Why should I do a living trust? You should consider a living trust as a way to protect your estate if you live too long and to transfer your estate at the time of your death without the expense or time of probate. If you live too long, become incompetent and are not able to manage your assets, you have named a person to handle your assets for your benefit until you die. By doing this, you avoid the expense of setting up a guardianship.
What are advanced directives? Advanced directives are documents that you sign ahead of time, giving instruction for future occurrences. They include health care proxies and living wills. Health care proxies name someone to make health care decisions for you if you are not able to make them yourself. A living will is your statement that in the event that there is no hope of your recovery, you do not want to be kept alive by artificial life support.
Should I put my children's names on accounts? We discourage our clients from putting their children's names on their bank accounts or title to their property. Anything with your child's name on it, even if it originally belonged to you, is subject to the creditors of your child. If you have placed your child's name on your account, at your death that account belongs to that child. In order for that child to transfer part of that account to his or her siblings, that child must make a gift and could possibly use up part of his or her unified credit or have to pay a gift tax.
Probate
What is probate? The term probate actually means "to prove." A person is proving that the deceased died without a will (intestate) or that they died with a will (testate) and the instrument presented to the court is that person's last will and testament.
Real Estate
What about adverse possession in Arkansas? Arkansas has a very short adverse possession statute. It says that if a person claims property adversely for seven or more years, then that person may have a court declare that person as the owner of the property. Adverse possession requires that a person have continuous, exclusive, adverse, notorious possession of the property for seven years or longer and pay taxes on the property unless it is adjacent to other property owned by the person claiming adversely.
Do I need a survey if I am buying real estate in Arkansas? A survey is always preferable; however, most property in Arkansas is sold and bought without surveys. You need to make sure that you and your neighbors agree on where the boundaries are before you buy the property. Even this agreement may not be adequate if there is a problem with the legal description
When does a fence line become a property line? When the part When the parties agree or when the fence has been there for more than seven years unless the parties on each side of the fence have agreed that the fence is not the property line.
Which is better, a warranty deed or a quitclaim deed? A warranty deed is always preferable!
What is difference between a warranty and quitclaim deed? The grantor in a warranty deed warrants that the grantor has good and merchantable title to the property, while the grantor in a quitclaim deed conveys only the interest which the grantor has in the property, if any.
What is difference between a mortgage and a deed of trust? These two documents do basically the same thing -- secure a promissory note with real property. You are required to sign either a mortgage or a deed of trust when you borrow money in order to buy real estate. The deed of trust names a third party to hold title until the promissory note is paid in full. The mortgage is more commonly used in Arkansas than the deed of trust.
Do I need a lawyer at closing? Real estate transactions can be tricky and are usually filled with numerous pages of documents -- documents that require your reading, understanding, and signature. Without a lawyer, you are on your own to either read all of these documents or sign them after someone who is not necessarily representing your interest tells you what these documents mean. It is advisable to have a lawyer with you at closing.
Social Security
When are you entitled to disabled worker's benefits? If you are a disabled worker, you are entitled to monthly cash benefits if you meet the following conditions:
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Are under a disability;
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Have filed an application for disabled worker's benefits;
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Have disability insured status;
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Have completed a five-month waiting period, unless you are exempt from this requirement; and
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Have not reached full retirement age.
Your benefits begin with the first month that you meet all of the conditions above.
(Social Security Handbook Section 501.1)
When are you considered "disabled"? You are considered "disabled" and entitled to disabled worker's benefits if you meet the following conditions:
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You are unable to engage in any substantial gainful activity because of a physical or mental impairment. You must not only be unable to do your previous work, but also any other type of work considering your age, education, and work experience;
NOTE: It does not matter whether such work exists in your immediate area, whether a specific job vacancy exists, or whether you would be hired if you applied for work.
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Your impairment(s) must be established by objective medical evidence;
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It is expected that your impairment(s) will either result in death or last for at least 12 months in a row; and
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You must meet the non-medical criteria needed to be insured by the program.
(Social Security Handbook Section 507.1)
What are the types of Social Security disability benefits? There are at least five major types of Social Security disability benefits. Disability Insurance Benefits is the most important type of Social Security disability benefits. It goes to individuals who have worked in recent years (five out of the last 10 years in most cases) who are now disabled. Disabled Widow's and Widower's Benefits are paid to individuals who are at least 50 and become disabled within a certain amount of time after the death of their husband or wife. The late husband or wife must have worked enough under Social Security to be insured. Disabled Adult Child Benefits go to the children of persons who are deceased or who are drawing Social Security disability or retirement benefits. The child must have become disabled before age 22. For Disability Insurance Benefits, Disabled Widow's or Widower's Benefits and Disabled Adult Child benefits, it does not matter whether the disabled individual is rich or poor. Benefits are paid based upon a Social Security earnings record. Supplemental Security Income benefits, however, are paid to individuals who are poor and who are disabled. It does not matter for SSI whether an individual has worked in the past or not. SSI child's disability benefits are a variety of SSI benefits paid to children under the age of 18 who are disabled. The way in which disability is determined is a bit different for children. (NOSSCR)
What is SSI? Supplemental Security Income (SSI) is a cash assistance program funded and administered by the Federal Government. The basic purpose of SSI is to assure a minimum level of income to people who are aged, blind, or disabled and who have limited income and resources.
What are the eligibility requirements for SSI? In order to receive SSI benefits, you cannot have monthly countable income more than the current Federal benefit rate (FBR). As of January 2009, the FBR for an individual is $674 and that for an eligible couple is $1,011. (The FBR for 2010 did not change because the cost of living did not increase.) In order to receive SSI benefits, you cannot own countable real or personal property (including cash) in excess of a specified amount at the beginning of each month. The limits for January 2009 are $2,000 for an individual and $3,000 for a couple. (Social Security Handbook Sections 2113.1 and 2113.2)
How does income and resources affect SSI benefits? The amount of your income determines your eligibility for SSI and the amount of your benefit. Generally, the more income you receive the lower your SSI benefit. If you have too much income, you are not eligible for SSI benefits. Income is anything you receive during a calendar month that is used or could be used to meet your needs for food or shelter. It may be in cash or in-kind. In-kind income is not cash; it is food, shelter, or something you can use to get food or shelter. (Social Security Handbook Sections 2128 and 2129)
How do I apply for Social Security disability? The best, surest way to file a Social Security disability claim is to go to the nearest Social Security office in person and wait (often for a few hours) to see someone to file the claim in person. In the alternative, a person may contact Social Security by telephone and arrange for a telephone interview to file the claim. Some applications may be made on the internet at www.ssa.gov.
How do I prove I am disabled and entitled to benefits? Disability is proven with evidence from acceptable medical sources. "Acceptable medical sources" are physicians and other licensed healthcare professionals. The evidence comes in the form of medical records, including lab reports, x-rays, MRIs, treatment notes, and any other documentation that is available describing the illness or injury and its impact on your ability to function. In addition, the opinion of your treating physician is very important. Therefore, make sure you tell your doctor about all of your medical problems (physical or mental), not just the more severe one.
What can I do to improve my chances of winning? Be honest and complete in giving information to Social Security about what is disabling you. Many claimants, for instance, fail to mention their psychiatric problems to Social Security because they are embarrassed about them. In almost all cases, individuals who were slow learners in school fail to mention this fact to Social Security, even though it can have a good deal to do with whether or not the Social Security disability claim is approved. Beyond being honest and complete with Social Security, the most important thing that you can do is just keep appealing and hire an experienced person to represent you. It is important to appeal because most claims are denied at the initial level, but are approved at higher levels of review. It is important to hire an experienced person to represent you because you do not understand the way Social Security works. Statistically, claimants who employ an attorney to represent them are much more likely to win than those who go unrepresented. (NOSSCR)
Do I need an attorney? You can go through all of the levels of review on your own, if you wish, but statistically claimants who are represented by an attorney win a good deal more often than those who are not represented. The vast majority of applications are denied at the first stage (about 65% are denied at the first stage), it is in your best interests to hire an attorney when you are denied at any stage of the administrative process.
How does the attorney get paid? In almost all cases, the attorney receives 25% of the back benefits if the claimant wins and no fee if the claimant loses. Currently the attorney's payment cannot exceed $6,000 in most cases. The payment is deducted from the back benefit award and paid directly to the attorney by the Social Security Administration. The attorney may not charge you any additional fees, however, the attorney may request reimbursment for expenses, such as the cost of medical reports, copying and travel.
When and how can an appeal be filed? If you wish to appeal a denial of your disability claim, you must make your request in writing within 60 days from the date you receive our letter informing you that your claim was disallowed or was only partially favorable. SSA assumes you receive the letter five days after the date on it, unless you can show us you received it later.
Social Security Handbook Section 525)
What are the steps in the administrative review process? The administrative review process consists of several steps that must be requested in writing, usually within specified time periods, and in the following order:
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You may request that the initial determination be reconsidered. Reconsideration is a re-examination of the administrative records in your case and an opportunity to submit additional evidence that results in a reconsidered determination;
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If you disagree with the reconsidered determination, you may request a hearing before an Administrative Law Judge (ALJ) of the Office of Disability Adjudication and Review;
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If you disagree with the ALJ's decision or dismissal, you may request a review by the Appeals Council of the Office of Disability Adjudication and Review.
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If you are dissatisfied with the Appeals Council's action, you may file a civil action in a Federal district court.
(Social Security Handbook Section 2000.3)
What is the processing time and claim allowance rate? 1. Initial Claim: 60 - 180 days / 34% allowed
2. Reconsideration Claim: 30 -120 days / 14% allowed
3. Hearing: 1 to 1½ years (from date of hearing request) / 62% allowed
4. To receive a decision after the hearing: 3 to 6 months or more
5. To receive first payment of benefits after a favorable decision: 1 - 3 months
6. To receive all back benefits after a favorable decision: 1 - 5 months
7. Appeals Council review: 30 days to 30 months / 2% allowed
8. Federal Court appeals: 2 years / 5% allowed, 45% remanded
Disclaimer
Disclaimer DISCLAIMER: The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We ask you to contact us by telephone, letter or electronic mail. However, contacting us does not create an attorney-client relationship. Please do not send us any confidential information until requested.
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