For veterans who have served in uniform anything less than an honorable discharge can have a dramatic effect on their post-service lives. A less than honorable discharge can put limitations on civilian employment, re-enlistment options, and veterans’ benefits. The process to change this characterization is not simple and the results are not guaranteed, but having a legal advocate in your corner can make the process easier and will almost certainly improve your odds of success.

All veterans are eligible to apply to their service branch’s Discharge Review Board for an upgrade of their discharge characterization or a change in the reason given for their discharge. The Army, Air Force and Coast Guard all have separate boards. The Navy operates one board for both Sailors and Marines. While each board differs somewhat from the next, they all follow statutory and regulatory mandates. To receive a discharge upgrade or a change in the discharge reason, an individual must prove to the appropriate Discharge Review Board that his or her discharge reason or characterization was “inequitable” or “improper.”

Remember you have the burden of proof at a Discharge Review Board. You need to offer the correct kind of evidence and the Board will only upgrade your discharge characterization if you prove to them that your discharge is inequitable or improper. This process requires skill, preparation and advocacy. Whether you were discharged for drug use, misconduct, medical issues, fitness issues, Gregory Jackson has experience handling discharge review board appeals.

The process is never hopeless, and it is always worth fighting to restore everything you have earned. You deserve an aggressive and experienced lawyer who understands the discharge upgrade process and knows how to get you the very best result. If your discharge is changed, you will receive a new discharge certificate, a new DD Form 214 and the decisional document of the Discharge Review Board.

Contact us today for a free consultation, and let our attorneys provide you with an honest assessment of your case. The attorneys at Spears, Huffman & Butler are dedicated to doing everything we can to help correct your discharge characterization.

The United States and Arkansas Constitutions protect persons from unreasonable searches and seizures. The Fourth Amendment to the U.S. Constitution guarantees the right of citizens to be free from unreasonable governmental searches and states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Subject only to a few specifically established and well-delineated exceptions, a search is presumed to be unreasonable under the Fourth Amendment if it is not supported by probable cause and conducted pursuant to a valid search warrant. The Arkansas Constitution also protects citizens against unreasonable searches and seizures. Article 2 § 15 of the Arkansas Constitution provides for the right to privacy and states:

The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Both provisions make it explicitly clear that before a warrant can be obtained by authorities, they must have probable cause.

Remember my standard disclaimer: This is not legal advice and I am not your lawyer, yet! I am providing this discussion for informative purposes only. Every situation is different and for legal advice on your specific situation, please consult a licensed attorney. Now with that out of the way, back to the discussion:

All searches conducted without a valid warrant are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. The burden is on the State to establish an exception to the warrant requirement. Further, the burden is on the State to prove that the warrantless activity was reasonable. But there are exceptions to the warrant requirement Such exceptions include (but are definitely not limited to) voluntary waiver of the warrant requirement, consent to the search or seizure, exigent circumstances, or an investigatory stop.

Firstly, you can voluntarily consent to a search of your person or possessions. As an example, the following conversation could take place and a waiver of the warrant requirement is obtained by the state:

Officer: “I’m just going to look in your trunk. Okay?”

You: “Sure.”

Exigent circumstances can include a number of situations but generally fall into one of several broad categories: (1) response to an emergency, (2) hot pursuit, (3) probability of destruction of evidence, (4) the possibility of violence, (5) knowledge that a suspect is fleeing or attempting to flee, and (6) a substantial risk of harm to the persons involved or to the law enforcement process if police must wait for a warrant.

Police generally may not search a home or seize evidence without a warrant supported by probable cause. Because the invasion of the home is the chief evil to be prevented by the Fourth Amendment, searches and seizures inside a home without a warrant are presumptively unreasonable. Therefore, warrantless entries of the home are per se unlawful absent exigent circumstances or other clear necessity.

One final exception that I would like to generally explain is the investigatory stop or “Terry stop.” In performing their duties, police must question citizens regarding events which the police are investigating. Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place. Further, officers may question citizens without implicating Fourth Amendment protections so long as the officers do not convey a message that compliance with their requests is required. An encounter is not consensual, however, if “in light of all the circumstances, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’”

A Terry Stop, as set forth in Terry v. Ohio, 392 U.S. 1 (1968), is a bit different from a consensual encounter. Sometimes called a “stop and frisk,” the Terry Stop is set forth in the holding in Terry which says that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and searches him or her without probable cause to arrest.  However, the Fourth Amendment is not violated if, and only if, the police officer has reasonable suspicion that the person has committed, is committing, or is about to commit a crime.  Now what constitutes reasonable suspicion is the subject of many law review articles and caselaw which varies widely from state to state, but let it suffice that it is not a very high threshold.

This reasonable suspicion must be based on “specific and articulable facts” and not merely upon an officer’s hunch.  Once this threshold is met, police may for their own protection perform a quick surface search (or frisk) of the person’s outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. The rationale behind the Supreme Court decision is “the exclusionary rule has its limitations.”  The exclusionary rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers).

SCOTUS extended Terry in Michigan v. Long, 463 U.S. 1032 (1983) which held that car compartments could be constitutionally searched if an officer had reasonable suspicion.  Reasonable suspicion is satisfied when the officer stops the vehicle on a pretext, since by definition, a “crime” has occurred even though the “crime” may be speeding, illegal lane change, license plate obscured, etc.  You get the picture….

Now your rights during a public stop (on foot with no violation of law) where the officer demands identification depends upon what state you are in at the time.  Depending upon the state law, SCOTUS held in Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004), that a state law requiring the suspect to identify himself during a Terry stop does not violate the 4th Amendment or the 5th Amendment privilege against self-incrimination (unless of course giving your name in and of itself incriminates you, which brings up an entirely different discussion!  Just like an onion, the more layers you peel, the more layers you uncover and simply want to cry!).

So it depends on whether your state has a law which conforms to the narrow Hiibel requirements which pretty much fall along the lines set forth in Terry in that police may detain any person “under circumstances which reasonably indicate that the person has committed, is committing or is about to commit a crime” as to whether you have to produce identification.

Here is a Wikipedia link to states that currently (as of 2010 according to the wiki page) have stop-and-identify statutes on the books.  As with all things wiki, you must verify the information.  Wikipedia is a great starting point, but anyone (even crazy defense lawyers) can edit the information, so you must verify the information.  For instance, the page shows Arkansas (where I am licensed) has a stop-and-identify statute.  However, looking to the actual text of the statute, it involves the crime of “loitering” and thus it automatically involves “reasonable suspicion that a crime is taking place.”  Here is the relevant portion of the statute:

§ 5-71-213. Loitering

(a) A person commits the offense of loitering if he or she:

(1) Lingers, remains, or prowls in a public place or the premises of another without apparent reason and under circumstances that warrant alarm or concern for the safety of persons or property in the vicinity and, upon inquiry by a law enforcement officer, refuses to identify himself or herself and give a reasonably credible account of his or her presence and purpose….

The statute also sets forth a number of other situations which is considered loitering (such as lingering around a school building without permission, lingering to beg, lingering to drink an alcoholic beverage, lingering to … well, you get the picture.) For a complete list, please consult the law itself. So you can see that the officer is not simply walking up and asking “papers please.”  The officer has to have reasonable suspicion that a crime is afoot.  Otherwise it is simply a request that any private citizen may ask, and you are free to either comply or refuse and ask “Am I free to go?”  Of course your refusal may make the officer suspicious (Catch-22 anyone?) and the officer may “investigate” further to gain reasonable suspicion.

There are many different facets to search and seizure law that are entirely too numerous to go into in this article. Suffice it to say this merely scratches the surface. If you are involved in a situation involving a search and seizure, please consult a licensed attorney to discuss your situation. EVERY SITUATION IS UNIQUE!!! We are not your lawyers (yet) so please remember this is a general disussion, and is NOT to be construed as legal advice. Please visit our site disclaimer for a full explanation of our disclaimer. However, if you wish to consult an attorney at Spears, Huffman & Butler, please contact us immediately for a consultation.

When children are involved, a divorce can become especially difficult although it doesn’t have to be that way.  Parents are especially concerned about their children and who will have custody and when can the non-custodial parent exercise visitation.  When it comes to child custody, Arkansas courts have no preference or presumption in favor of either parent when the parents have been married.  A common misunderstanding about custody is that the mother always is granted custody.  This is certainly not the case.  The only question the court bases its decision as to the custody determination is “the welfare and best interest of the child.” Ark. Code Ann § 9-13-101 sets forth this standard and specifically states that a custody award will be made “without regard” to whether the parent is the father or mother.  Note that this only applies if the parents were married.  Ark. Code Ann. § 9-10-113 provides that if the parents have not been married at any time from conception to birth, then custody is automatically legally awarded to the mother, unless a court decides otherwise.  Obviously if the biological father proves he is the father through a court in some paternity proceeding, then he may petition the court to be awarded custody.

Sometimes divorcing parents want to have “joint custody.”  Although Ark. Code Ann. § 9-13-101(b)(1)(A)(ii) permits a court to award joint custody, joint custody is disfavored by the courts in Arkansas.  The standard is always
“the best interest of the child” and the court will likely want to know a lot more about the arrangements the parents have in place.  The court will also inquire about whether the parents can get along, where the parents live and how distance may affect the child or children, and whether both parents can demonstrate their commitment to such a joint custody arrangement and to the other spouse in participating in a joint custody arrangement.

As between the parents and a third party, such as siblings or grandparents having custody, there is a legal preference for the parent to have custody “unless the parent is proved to be incompetent or unfit.”  This is so even under circumstances where the child might be better off with a third person.  Arkansas courts hold that “the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent.” For more information see this court case among the others court cases discussing the law in Arkansas regarding third-party custody: Coffee v. Zolliecoffer, 93 Ark. App. 61 (2005).

A court may consider the child’s preference as to custody, but is not bound by the child’s wishes.  See Ark. Code Ann § 9-13-101(a)(1)(A)(ii) or Hepp v. Hepp, 61 Ark. App. 240 (1998).  Sometimes parents fight very hard over who will get custody of the children.  In that case, the court may appoint an attorney ad litem to look to the best interest of and represent the children in accordance with Ark. Code Ann. § 9-13-101(e)(2).

The initial custody determination is extremely important.  This is because to modify custody at a later date, the burden is on the parent seeking modification, to show “a material change of circumstance” which makes it in the best interest of the child for the modification to occur.  See for example Middleton v. Middleton, 83 Ark. App. 7 (2003).  The Arkansas Supreme Court has held that this requires a more stringent standard whereby the party must prove additional factors showing why a modification of custody is warranted.  The factors are numerous and each case is different, therefore, in order to determine if your case warrants a modification of custody, contact us to schedule a free consultation so we may evaluate your case and discuss your options.  We are not your attorneys (yet) and therefore please see this notice:

NOTICE: The information contained on this website is provided for general informational purposes only and should NOT be construed as legal advice nor as forming any manner of attorney-client relationship.  The law is always changing and we strive to stay on top of such changes.  However, each case is different and must be evaluated personally by a licensed attorney to provide the best possible advice.

I’ve had a question about military members returning from deployments and their employment rights.  With the endless back-to-back deployments of our military forces, the DoD is relying on the Guard and Reserve forces as an integral part of the regular forces.  Thus a lot of the so-called “weekend warriors” are no longer that (unless you consider a weekend that lasts about four to eighteen months!).  When these members of the Guard and Reserve units return, unlike members of the regular forces, they return to their civilian employment.  The term citizen-soldier is appropriate here.

When these members return from deployment for extended periods of time (often times 2 years or more) they return to their old jobs and wonder about their positions, seniority, promotions, etc. that would have occurred while they were deployed.  Do they get these promotions or seniority?  What rights do they have to take their old job back from the temp the employer hired in the member’s absence?

The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4301 et seq., sets forth the rights and responsibilities of military members and their employers upon the member deploying for and returning from military service.  This federal act seeks to minimizing civilian employment problems resulting from such service.  USERRA prohibits discrimination and acts of reprisal against members who serve in the uniformed services.

An employer may not deny a person initial employment, promotion, or any benefit of employment because the person performed or is obliged to perform service in a uniformed service.  Uniformed services means the Air Force, Army, Navy, Coast Guard, Marine Corps, and the commissioned corps of the Public Health Service.  Service means performing duty on either “a voluntary or involuntary basis in a uniformed service.” It includes “active duty, active and inactive duty for training, initial active duty for training, full-time National Guard duty, [and] a period for which a person is absent from employment for the purpose of an examination to determine the fitness of the person to perform any such duty….”  USERRA applies to any federal executive agency, state and local governments, and private employers, regardless of size.

ELIGIBILITY CRITERIA

To have reemployment rights following a period of uniformed service, a person must meet all of the following eligibility criteria

1.     Must have held a civilian job, which may include temporary jobs

2.     Must have given advance notice to the employer that they were leaving the job for service in a uniformed service, unless such notice is impossible or unreasonable

3.     The period of service does not exceed five years.  The period of service is cumulative as long as the person is employed by or seeking reemployment with the same employer. A person starting a new job with a new employer receives a new five-year entitlement.  Some categories of military service do not count toward the five-year limit such as most periodic and special Reserve and National Guard training, most service in time of war or emergency, and involuntary extensions on active duty

4.     Must have been released from service under honorable conditions

5.     Must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment

RIGHTS

People who meet the eligibility criteria above have seven basic entitlements under USERRA:

1.     Prompt reinstatement;

2.     Accrued seniority, as if the person had been continuously employed (the returning member receives the seniority he or she would have enjoyed had the member kept the position continuously during military service);

3.     Immediate reinstatement of civilian health insurance coverage with no waiting period and no exclusions of pre-existing conditions, other than those conditions which the Department of Veterans Affairs has determined to be service-connected;

4.     Other non-seniority benefits, as if the person had been on a furlough or leave of absence (such as holiday pay or bonuses);

5.     Training or retraining and other accommodations.  Training or retraining requires an employer to make reasonable efforts to qualify the returning person for work, including training on new equipment or methods.  Accommodations also requires a reasonable effort to accommodate a returning disabled service member otherwise entitled to reemployment;

6.     A person reemployed by an employer shall not be discharged, except for cause a) within one year from being reemployed, if continuous service in the uniformed services was more than 180 days; or b) within 180 days from being reemployed, if continuous service was 31-180 days.  No special protection exists for service of 30 days or less;

7.     Prohibition of discrimination or reprisal:  An employer cannot deny initial employment, reemployment, retention, promotion, or any benefit of employment because of a person’s service or application to serve in the uniformed services; OR an employer may not take adverse employment action against a person because they either take enforcement action under USERRA, testify or assist in an USERRA investigation, or exercise any right under USERRA.

ASSISTANCE AND POINTS OF CONTACT

If you think you have been wrongfully treated under the provisions of USERRA, there are a few places to turn for assistance.  In addition to other avenues, the Veterans’ Employment and Training Service within the United States Department of Labor will assist persons claiming rights under USERRA, including persons claiming rights with respect to the federal government as a civilian employer.  The best starting place for assistance with USERRA violations and enforcement is the office of Employer Support for the Guard and Reserve (ESGR).  Their website is an excellent resource for information on USERRA and other Guard and Reserve issues including this fact sheet on USERRA and how to go about utilizing the protections (such as how to give notice to your employer in the first place, or questions about pay).  I highly recommend anyone with questions start with this website.

As always, this is a cursory overview of this topic meant to be informative and should not be relied upon for legal advice.  We are not your lawyers (yet) and if you wish to receive assistance on a specific issue, please contact a licensed attorney (or on this topic at least – ESGR) to discuss your specific situation.

I would like to add an excellent resource for your information.

The ACLU has come up with its “Bust Card” which has a succinct overview to follow if you encounter the police.  It covers various situations in which you will encounter police questioning such as in your home, stopped in your car, or brought in for questioning.

The pdf can be found here.  The ACLU is an excellent organization when it comes to defending certain parts of the Bill of Rights like the 1st, 4th, and 5th Amendments, among others (unfortunately they conveniently forget other parts of the Bill of Rights, ahem, 2nd Amendment anyone?).

When parents are getting divorced (after who gets custody of the children) is what are the laws affecting visitation rights?

Children are anxious about how their relationship with each parent will change when parents divorce.  It is certainly true that a caring relationship with both parents is essential to a healthy upbringing.  That is why a court will look to many of the factors when establishing custody with an eye toward setting up visitation.  Ark. Code Ann. § 9-13-101(b)(1)(A) states that a court looks to the best interests of a child and that when it is in the best interest “custody shall be awarded in such a way so as to assure the frequent and continuing contact of the child with both parents.”  Again, the best interests of the child is paramount.  No other factor is more important.

Since a caring relationship with both parents is most likely in the best interests of the child, in most cases, the noncustodial parent is awarded visitation with the children.  Courts will look to various factors in determining reasonable visitation.  The court considers the wishes of the children, the capacity of the party desiring visitation to supervise and care for the children, problems related to transportation, problems with parents’ prior conduct in abusing visitation, the work schedule or stability of parties, and the relationship with siblings and other relatives.  See for example Hass v. Hass, 80 Ark.App. 408, 97 SW 3d 424 (2003).  Also, the court can consider the wishes of a child regrading visitation regardless of the child’s age if the child is “of a sufficient age and capacity to reason” but is not bound by the child’s wishes. See Ark. Code Ann. § 9-13-108.

Like when determining custody, the initial determination of visitation is of particular importance.  This is so because of the requirement to modify visitation at a later date.  Visitation is always modifiable, but like modification of custody, the courts “require more rigid standards for modification than for initial determinations in order to promote stability and continuity for the children”.  See Martin v. Sharbor, 95 Ark. App. 52, 233 S.W.3d 689 (2006). for a discussion on modification of visitation.  However, unlike a modification of custody, the standard is not a “material change in circumstances.”  Visitation may be modified upon a proper showing that it is a change to which the petitioning parent is reasonably entitled because of changed circumstances pertinent to visitation and also that the welfare and best interest of the child dictate a change.  For instance, a circumstance warranting a change is when either parent relocates so that the current visitation schedule is no longer practical is a sufficient change of circumstance to modify visitation.

And since the best interests of the child is paramount, domestic violence can play a major role in visitation (as well as custody).  Ark. Code Ann. § 9-13-101(c) looks to domestic violence and mandates that the court “must consider the effect of such domestic violence upon the best interests of the child” when determining visitation.  It further makes a presumption which may be rebutted that it is not in the best interest of a child to be placed in the custody of an abusive parent (and thus affects the visitation rights of that parent).

There are specific laws that provide for visitation and access by third parties.  Regardless of the degree of blood relations, or if the person is a minor, siblings may petition for reasonable visitation. Ark. Code Ann. § 9-13-102.  Grandparent visitation has been the subject of litigation around the country in recent years.  Grandparents and great-grandparents may also petition for visitation under certain circumstances such as who has custody of the child as set forth in Ark. Code Ann. §§ 9-13-103 and 9-13-107.  Occasionally, the court will grant visitation to a person, not biologically related to the child such as a step-parent, who has acted as a parent to the child, in loco parentis.  See for example Robinson v. Ford-Robinson, 362 Ark. 232, 208 S.W.3d 140 (2005) for a discussion of the law related to step-parent visitation.

The factors are numerous and each case is different, therefore, in order to determine if your case warrants a modification of visitation, contact us to schedule a free consultation so we may evaluate your case and discuss your options.  We are not your attorneys (yet) and therefore please see this notice (hey we’re lawyers and as such there ALWAYS has to be a disclaimer!):

NOTICE: The information contained on this website is provided for general informational purposes only, does not create an attorney-client relationship, and does not in any way substitute for professional
consultation and advice, generally or in a particular case and should NOT be construed as legal advice nor as forming any manner of attorney-client relationship.  The law is always changing and we strive to stay on top of such changes. Although we attempt to keep our web site as current and accurate as possible we have also included older, archived materials on our site.  We cannot assure you that all the information will be applicable to your situation, accurate, complete, or up to date. Nor can we assure you that our web site always will be available or free of functional defects.  We disclaim any and all liability in respect to actions taken or not taken based on any of the contents of this web site. However, each case is different and must be evaluated personally by a licensed attorney to provide the best possible advice.

One question that I dealt with during my time as a JAG counseling military members is “I just got a summons in the mail while I am deployed.  What happens to me if I am sued while I am deployed?”  A related question dealt with (more frequently than military members being sued) is “I am deploying (or changing duty stations) and my landlord won’t let me out of my lease.  What do I do?”

Well fortunately Congress has provided protections for military members in these (and other) situations.  It is the Servicemembers Civil Relief Act (SCRA), 50 App. U.S.C. §§ 501-596 (A well put-together listing of the Act provided by the DoD here). SCRA provides a wide range of protections for military members.  After I got a couple of questions from friends who are currently deployed, I decided to submit this post.  It is apparent not every servicemember is being told about SCRA (or simply don’t know enough to ask their resident JAG for legal assistance*).  The SCRA is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to duty.  Note that last sentence says “postpone or suspend … obligations.”  It does not eliminate the underlying civil legal matter, just puts it off until the member is no longer on active duty. Also, the Act applies to civil matters, not criminal matters.  If Johnny Q. Law wants you, you will have to answer to him (or someone just like him, a.k.a. JAGs armed with the U.C.M.J.).  But if John Q. Public (or Jane for that matter) wants to sue you (and you are on active duty) then SCRA is your friend.

Some requirements for SCRA to apply.  Reservists and the members of the National Guard are protected by the SCRA while on active duty (which includes deployments obviously).  The protections generally begin on the date of entering active duty and generally terminate on the date of the person’s release from active duty.  However, exceptions may apply, depending on which provision of the Act is sought.

Here is a synopsis of the most common and relevant provisions in the SCRA (for the full act, see the link above and above all consult a legal professional (which military members will want to use the JAG legal assistance program first*).

1.     Rent – The SCRA prohibits eviction, without a court order, of a service member and dependents from rented housing where the rent does not exceed $2,720.95 per month. 50 App. U.S.C. § 531 (This amount is adjusted upward yearly using a cost-of-living formula using the CPI housing component.  It is a complicated formula – just know that it goes up). Unless, in the opinion of the court, the ability of the tenant to pay the agreed rent is not materially affected by the tenant’s military service, the court may delay eviction proceedings for up to three months.

2.     Lease Termination – A more frequently relied upon provision is the lease termination provision. 50 App. U.S.C. § 535.  A military member may unilaterally cancel a lease of premises if they receive orders (PCS or deployment for more than 90 days).  In addition, a military member may cancel a pre-service lease for a motor vehicle if they receive orders bringing them onto active duty for a period of not less than 180 days.  A military member may cancel any motor vehicle lease (pre-service or signed during service) for deployment orders for more than 180 days.  If a military member is already on active duty when executing the lease, the member may cancel the lease if PCSing OCONUS for a period of not less than 180 days.  Bottom line when invoking this section, a military member must meet certain specified criteria and give notice as set forth in this section (including the relevant time periods).  Any questions should be referred to a lawyer.*

3.     Installment Contracts – A servicemember who enters into an installment contract before entering active duty is protected if his or her ability to make payments is materially affected by military service. 50 App. U.S.C. § 532.  The key question is whether the ability to make payments is materially affected by military service.  You cannot just get out of a contract just because you go on active duty.  Here, the courts will compare the servicemember’s pre-service income and military income to determine his or her financial condition.  Unless you are a doctor with an extremely successful practice (or other job which affords an income level which the creditor thinks warrants an installment contract) and entering active duty cuts your pay significantly, this provision is not likely to apply.  What level of income is determined on a case-by-case basis and any questions should be referred to a lawyer.*

4.     Maximum Rates of Interest – The interest rate on a member’s pre-service obligation must be capped at 6% unless the creditor shows that the ability of the servicemember to pay interest above 6% is not materially affected by reason of their military service. 50 App. U.S.C. § 527.  This relief applies during the entire period of active duty service and must be applied retroactively if the member does not request the cap at the outset of military service.  However with today’s business environment, interest rates which exceed this 6% cap likely will apply to things like credit card interest (not likely mortgages since the Fed keeps lowering the rates!).

5.     Stay of Proceedings – Another commonly used provision of SCRA is the stay of proceedings section. 50 App. U.S.C. § 522.  Courts have the discretion to (read may) delay a civil court proceeding when the requirements of military service “materially affect the servicemember’s ability to appear” or otherwise prevent the member from either asserting or protecting a legal right. 50 App. U.S.C. § 522(b)(2)(A).  This applies to military members with notice of the proceedings (i.e. the member was served with a summons in the civil action).

6.     Default Judgments – As a corollary to the stay of proceedings section, before a court can enter a default judgment (for failure to respond to a lawsuit or failure to appear at trial – including child custody proceedings) against a military member, the person suing the member must provide the court with an affidavit stating the defendant is not in the military. 50 App. U.S.C. § 521.  If a default judgment is entered against a servicemember, the judgment may be reopened if the member makes an application within 90 days after leaving active duty, shows the member was prejudiced, and shows the member had a legal defense (i.e. it is not a “get out of jail (default judgment) free card” – you must actually have a valid defense to the civil action). 50 App. U.S.C. § 521(g).

7.     Insurance – A servicemember’s private life insurance policy is protected against lapse, termination, or forfeiture for nonpayment of premiums for a period of military service plus two years. 50 App. U.S.C. §§ 541-549.  The insured or beneficiary must apply to the Veterans’ Administration for protection. 50 App. U.S.C. § 543.

8.     Taxation – A servicemember’s state of legal residence may tax military income if it taxes income. 50 App. U.S.C. § 571.  A member does not lose legal residence solely because of a transfer pursuant to military orders. 50 App. U.S.C. § 571(a).  For example, if a member is a Tennessee resident (does not tax certain income from earnings) and is moved to a base in Arkansas (which does tax income from earnings), the member does not lose Tennessee residency nor will the member be subject to pay Arkansas state income tax on the member’s military pay. 50 App. U.S.C. § 571(b).  Also, a non-resident service member’s pay may not be used to raise a spouse’s pay into a higher tax bracket. 50 App. U.S.C. § 571(d).  In other words continuing the example, the Tennessee servicemember’s income from military service cannot be used to calculate the spouse’s Arkansas income tax liability from his or her income.

These are just some of the provisions SCRA offers.  As always, I am not your lawyer (yet) and any information provided on this post and blog is just that – information.  Each legal situation is unique and you should always consult a licensed attorney for advice on your specific situation.  In other words – this is not legal advice and you should consult a licensed attorney before relying on anything you read on a blawg (even if the information is correct).  I strive to bring the most up to date information, but the law is ever changing!

*  I mentioned several times that you should consult a lawyer with questions regarding your legal situation.  Military members (those who will likely be invoking SCRA) have the option of their base JAG attorneys for legal assistance free of charge.  The base Judge Advocate should be your first stop for advice.  It costs you nothing and you get a better read of the facts and the applicability of SCRA.  Some military services (such as the Army) allow JAG offices to draft and file documents in civilian courts on your behalf whereas other services (such as the Air Force) only permit the JAG offices to provide general legal advice on civil matters without allowing them to appear in civilian courts on your behalf.  Please consult your local JAG office to determine what types of services they provide.  Again it costs you nothing to consult.  Just make sure you comply with any time constraints such as answering summonses (which usually have a 20 day limit).  DON’T WAIT AND SAY YOU WERE WAITING TO SEE THE JAG AT YOUR APPOINTMENT THREE DAYS AFTER THE TIME LIMIT!!!

When you become a lawyer, you start to get a lot of questions that begin “Say a man did ….”  People want to ask a lot of questions about what to do when they have a legal situation.  What do I do if my neighbor’s dog attacked my livestock?  What do I do if my roommate ran up a large phone bill to Mexico and now will not pay up?  What do I do if X happens?  Well all these situations may end up in the court system and you certainly can hire a lawyer.

Or if the amount in controversy is below a certain amount (varies by state), you can take them to what is known as a Small Claims Court (or at least your local version thereof).  Virtually all states have some form of a Small Claims Court.

In Arkansas, the Small Claims Division of the local District Court handles all civil actions which do not exceed $5,000.

How much will a lawyer cost to sue in Small Claims Court?

Well that is the good news.  You do not need an attorney to file your claim in Small Claims Court.  Pursuant to Arkansas Supreme Court Administrative Order 18, no party may be represented by an attorney, or the District Judge will transfer the case to the regular docket.  In other words, if an attorney shows up (other than if the attorney is the one suing or being sued) then the case is transferred out of the Small Claims Division.  That certainly does not prevent you from obtaining legal assistance from an attorney (I certainly will help you – for a fee of course!) it just means you have to present your case to the Judge.  Also, only individuals (or corporations organized under Arkansas law and which have no more than three stockholders or in which eighty-five percent or more of the voting stock is held by persons related by blood or marriage within the third degree of consanguinity or any closely held corporations by unanimous vote of the shareholders) may sue and be sued in the small claims division.  All other corporations and collection agencies must sue in the District Court or Circuit Court.

How complicated is it to file in Small Claims Court?

Not very.  Beyond a few basic requirements for filing the complaint and service of summons, you basically present your case to the Judge.  The District Court Clerk usually has forms and booklets to assist you in filing and pursuing your case.  There are rules of evidence, but they are relaxed since the parties are not represented by attorneys.  The Arkansas Supreme Court has put together an excellent brochure on the Small Claims Court and frequently asked questions here.  All the procedures are outlined in the District Court Rules (specifically Rule 10 – Procedure in Small Claims Division).

So next time your deadbeat roommate stiffs your for bills and you want your day in court (and you are suing for $5,000 or less) but you don’t want to pay an attorney to represent you, go to Small Claims Court.  Of course, if the matter is too complicated and you just don’t want the hassle (or the matter is more than $5,000), I (or any other competent attorney) can help you (again for a fee of course!).

The decision to divorce is a very stressful one.  This is especially true when minor children are involved, not to mention the accompanying financial strains.  The attorneys at Spears, Huffman & Butler, PLLC monitor and understand the changing Arkansas divorce laws and are able to put into practice the best legal strategy for you in your particular situation.  We understand the stress involved and work to minimize the impact of the legal process when obtaining a divorce with as little fighting as possible and obtain the best results possible for our clients.

The first step is always to try and save the marriage, but when those efforts are unsuccessful, the state of Arkansas allows the parties to dissolve  the marriage through a divorce.  Arkansas is not a “no-fault” state and therefore you must prove certain grounds required by law.  These grounds must be proven with evidence and must be corroborated (backed by third parties).  The closest to a “no-fault” divorce in Arkansas is when the parties have lived separate and apart for more than 18 months.  The grounds necessary to obtain a divorce in Arkansas (and your marriage is not a “Covenant Marriage”) are found at Arkansas Code Annotated § 9-12-301 and are:

(1) Impotency at the time of and during the marriage.

(2) Conviction of a felony or infamous crime.

(3) Habitual drunkenness for one year; Cruel and barbarous treatment; Indignities.

(4) Adultery.

(5) Separation for eighteen (18) months.

(6) Separation by reason of insanity for three years.

(7) Failure to support.

A majority of divorces in Arkansas are granted on the basis of “general indignities.”  If your marriage is a “Covenant Marriage” then there are additional requirements such as mandatory counseling among other requirements (such as if the grounds are for separation only, then the time frame is not 18 months, but is extended to 2 years or 2 and 1/2 years if minor children are involved).  If your marriage is a Covenant Marriage, then you must check if you have satisfied the additional requirements found at Arkansas Code Annotated § 9-11-808.

An alternative to a traditional divorce is what is called a “separation from ‘bed and board,’” in which a Court can grant a temporary division of property while the parties live separate and apart.

For an evaluation of your case and to determine if you have statutory grounds for divorce, contact us today to schedule a free consultation to discuss your options.