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By delktomli48103527, Apr 21 2017 07:04PM

A deposition is one of the tools many lawyers use to gather facts about a case. Depositions are where testimony is taken under oath instead of, or in addition to, written discovery requests. Normally, written discovery requests are sufficient to get the information necessary to try family law matters. It is usually cheaper and easier on the client to serve written discovery requests. However, depending on the complexity and specific facts of your case, depositions can be a very useful tool in preparing for litigation.

Depositions are usually held in an attorney’s office. Sometimes you will be required to bring specific documents with you to the deposition. You will be notified if you are required to bring documents. Generally, they are the same documents previously requested in written discovery. A court reporter is present, as well as the attorney taking the deposition, the opposing party, if he or she so chooses, your attorney, and you. The court reporter will place you under oath meaning that you must tell the truth, the same as if you were testifying before a judge. The attorney conducting the deposition will ask questions. You are required to answer all of them honestly.


Your attorney can object to certain questions. However, you must still answer unless your attorney tells you otherwise. This is confusing to many clients. In court, if an attorney objects the judge makes a ruling as to whether the client must answer or not. In contrast, in depositions, your attorney can object, but you must still answer. The reason that your attorney objects is to preserve the objection for trial. This is a technical part of lawyering that most clients have trouble with. Many wonder, “if they can’t use it in court, why do I have to answer?” It is the same as questions asked in written discovery. The parties must answer all written discovery questions truthfully, under oath, whether or not the information provided is going to be admissible in court. In the written responses we turn over to opposing counsel, we include a very broad objection clause in the preamble to your responses that operates the same way your attorney’s objection in a deposition does. There are limited circumstances where you can refuse to answer, including your Fifth (5th) Amendment right against self-incrimination. Because adultery is still a crime in Alabama, you may plead the 5th Amendment if answering would open you up to criminal liability.


Depositions can be tough to get through because the opposing party is sitting in the room with you while you are answering these questions, making it an uncomfortable experience. You must mentally prepare yourself to give short, concise, truthful answers, no matter how uncomfortable you may be. This is good preparation for trial, as the opposing party will also be in the courtroom. Just as you should in a trial setting, you must try to be as calm, cool, and collected as you can be throughout a deposition.


The attorney conducting the deposition may attempt to push your buttons and make you angry in the hopes of getting more information from you. Do not allow yourself to be bullied into reacting poorly in a deposition. If you need a break, ask for one. Your attorney may also request one if they see that you are having trouble. You can ask your attorney questions, but your attorney cannot give your answers for you. Your attorney is there for support and to preserve the right to object at trial. We understand how difficult depositions can be on clients and strive to prepare them to the best of our ability prior to the deposition.


Hopefully this post has removed some of the mystery from the deposition process. If you have any questions or comments, please leave them below or contact our office at (334) 819-4810.



By delktomli48103527, Apr 14 2017 08:43PM

Quite often counseling is brought into divorce and child custody proceedings through the courts. The most common types of counseling that we see ordered by the courts are co-parenting counseling, counseling for the children, and counseling with the children and one or both parents. These types of family counseling can be very beneficial. If counseling is not ordered by the court, it is often brought up in settlement negotiations. We encourage clients to consider these types of family counseling during and after litigation.

Personal counseling for yourself during a divorce or child custody dispute, while not required, is something that you should consider. Many of our clients here at Delk & Tomlinson are men and we understand that many men have an automatic aversion to seeking professional counseling. However, in many cases it would greatly benefit our clients. There are several counselors that we can recommend to help you through the emotion, stress, and anger that comes with a divorce or custody dispute.

We try to be there for our clients in every way possible and sometimes wind up being placed in the role of a counselor. However, we are lawyers, not counselors, and can only help so much. We do not have the education, experience, or training to assist you in working through the issues that can come with a divorce or custody case. Seeking counseling for yourself may benefit you in many ways. It can improve your relationship with your children and influence the way you handle interactions with the other party, ultimately allowing you to be the best parent you can be during this transition.

We have provided several links to give you some guidance when deciding whether counseling is something you, your children, and/or the other party may benefit from. If you have any questions, please call us at (334) 819-4810.

Children and Divorce:

https://www.aamft.org/iMIS15/AAMFT/Content/consumer_updates/children_and_divorce.aspx

http://www.huffingtonpost.com/kate-scharff/divorced-children_b_3187252.html

Divorce and Divorce Adjustment:

http://www.goodtherapy.org/learn-about-therapy/issues/divorce

What is Divorce Counseling?:

http://www.allpsychologycareers.com/topics/divorce-counseling.html

Divorce Counseling: Pre-Divorce vs Post-Divorce Therapy:

https://www.therapytribe.com/therapy/divorce-counseling-advice-support/

Co-Parenting Counseling:

https://www.psychologytoday.com/blog/co-parenting-after-divorce/201211/family-therapy-and-parenting-coordination-reduce-conflict

https://www.psychologytoday.com/blog/two-takes-depression/201203/the-dos-and-donts-co-parenting-well

By delktomli48103527, Apr 7 2017 09:36PM

Since 2003, every custody determination must include with the order of custody the language of the Alabama Parent-Child Relationship Protection Act, otherwise known as the “relocation act.” The Act was implemented to promote the “general philosophy in this state that children need both parents, even after divorce.” It requires relocating parents to take certain procedural steps prior to any change in their principal address, to ensure that children have access to both parents. The most important thing to remember about the Act is to carefully follow the instructions laid out in the Act.


The Act requires any party, whether they have primary physical custody or visitation rights, to notify the other party prior to moving more than sixty (60) miles or more from the residence of the non-relocating party. Notice must also be given where the move is less than sixty (60) miles from the non-relocating parent, but will result in the child living in another state. This notice must be sent by certified mail forty-five (45) days prior to the intended move. If for some reason, you do not know of the relocation in sufficient time to provide a forty-five (45) day notice, you must give notice by certified mail no later than the 10th day after you know you’re moving.


The notice must contain very specific information, such as: (1) the intended new residence, including the specific address if known; (2) the mailing address, if not the same as the street address; (3) the telephone number or numbers at such residence, if known; (4) if applicable, the name, address, and telephone number of the school to be attended by the child, if known; (5) the date of the intended change of principal residence of a child; (6) a statement of specific reasons for the proposed change of principal residence of a child, if applicable; (7) a proposal for a revised schedule of custody of or visitation with a child, if any, and; (8) a warning to the non-relocating person that an objection to the relocation must be made within thirty (30) days of receipt of the notice or the relocation will be permitted. There are certain exceptions if you are under Military orders.


Failure to notify the non-relocating party of an intended change in principal residence may be considered in a subsequent case. On the other hand, if the non-relocating party receives the notice required by the Act and doesn’t file an objection within thirty (30) days, the change of principal residence is authorized.


If the non-relocating party does object, a hearing will be held to determine whether the relocation is in the best interests of the child. In cases where the court approves the change in residence, it will require “contact between the child and the non-relocating party and telephone access sufficient to assure that the child has frequent, continuing, and meaningful contact with the non-relocating party.” Issues of transportation cost of the child for visitation will also be decided based upon the facts of the case. The court may determine that a deviation from the child support guidelines should be considered in light of all factors, including the costs of transporting the child for visitation.


It is very important for both parties/parents to abide by this Act. Failing to give notice or to object to the Act could result in you losing custodial time with your child. The courts have discretion when determining whether you violated the Act and tend to frown on situations where you willfully defy the Act. It is best for all parties involved, including your minor children, if you abide by the Act and give notice.


If you have any questions concerning the Alabama Parent-Child Relationship Act, please call our office at (334) 819-4810.



By delktomli48103527, Mar 24 2017 08:47PM

There are many things that attorneys can argue over, but the calculation of child support pursuant to the guidelines is not one of them. This is one of the most black and white areas of family law. Hopefully, this blog post will give you some insight to how child support is calculated.


There are several factors that the rule regarding child support takes into account, which include the combined gross monthly income of both parents, each parent’s gross income as a percentage of the combined gross income, the amount that the Alabama Legislature has determined is necessary to raise the number of children you have together, any pre-existing child support or alimony orders, the amount paid for work-related childcare, and the amount paid for health insurance for the child or children, and which parent is paying that expense.


The gross monthly income is your income BEFORE taxes are deducted. Both parties are required under penalty of perjury to disclose ALL income sources. However, there are several things that do not qualify as income which your attorney can explain to you. The pre-existing child support or alimony orders can reduce your gross monthly income in child support calculations.


Being unemployed or underemployed does not extinguish your child support obligation. The court will impute income to an individual that it finds to be voluntarily unemployed or underemployed. If the court finds that an individual is voluntarily underemployed, the court focuses on several factors such as the employment potential and probable earning level of that parent, based upon that parent’s work history, education, and occupational qualifications, and on the job opportunities and earning levels in their community.


Work-related childcare costs are then added to the total amount of money that the Alabama Legislature has deemed necessary to raise the number of children you have with the party. However, there are limits as to how much daycare expenses can raise your child support obligation. Each parent’s percentage of the total of the combined gross income of the parents is then applied to that amount. This gives you the child support amount that you would owe monthly. However, health insurance comes into play and can reduce one parent’s obligation, and determining the amount you can claim for health insurance can be tricky—it is not simply the difference between single and family coverage.


After you have provided the figures to your attorney, your attorney can then calculate the correct amount of child support that you owe. Most of these figures, excluding childcare costs, can be found on your paystub or taxes.


There are a couple of specific situations that can alter the way child support is calculated. The most common reason to calculate child support outside of the guidelines is true joint physical custody. There is no place in the rule for joint physical custody, which is where the child spends the same amount of time with both parents and neither party has primary physical custody. If this is your situation, you should consult a local attorney to help you.


Different judges have different ways of handling child support in these situations, and a local attorney will be able to give you more insight into how a specific court will calculate child support.


If you have any questions or comments, please leave them below. If you are struggling with a child support issue yourself, please call our office at (334) 819-4810 for a consultation.



By delktomli48103527, Mar 17 2017 04:07PM

We have many clients who don’t work 9-5 jobs, like shift workers or military personnel. It’s our job to find a schedule that works for you. Shift work and military deployments do not automatically ensure that your children will stay with the other party. Many clients who work shift work or are military, reserves and active duty, immediately assume that the other party will be granted primary physical custody of the children. While this may have been the case years ago, many courts are leaning toward shared physical custody.

Shared physical custody does not necessarily mean fifty-fifty custody. In fact, in many cases, it is not. Every case is different and every case requires its own custodial schedule. There are several ways to deal with the odd hours or changes in your work schedule.

If you can settle your case outside of court, you have the most flexibility with regards to the custodial schedule. In any agreement, your attorney should try their best to ensure that every possible scenario is accounted for. Rotating shift work may require the attorney to try to include a rotating custodial schedule. Set shift work may have a schedule based off the shift you are on. Your attorney should try to factor in military deployments and drill weekends. The attorney should also try to include a catchall provision that considers your changing schedule and allows for the parties to reschedule custodial time if necessary, but that the rescheduling must allow you to have the same amount of time with your children as before. In other words, the schedule may change, but your time with your children won’t.

It is more difficult to get such a detailed order from the court, but not impossible. The opposing party must show that it is not in the best interest of your children to share physical custody. If the opposing party fails to meet that burden, we must then show the court the schedule that we believe is in your children’s best interests. We do this through our complaint or answer as well as testimony. We set forth your work schedule, her work schedule, and specifically ask the Court for a specific schedule that is in the best interest of your children. In instances where the Court asks your attorney to prepare an order, she can include as detailed a schedule as if she were writing an agreement. In instances where the Court issues an order, we will deal with whatever he or she orders. If it is not a workable schedule, we can attempt to remedy that by filing a motion with the Court, setting forth the reasons the schedule doesn’t work and offering a schedule that does.

Bottom line, don’t give up before you even begin by assuming that you are not entitled to time with your children because of your work schedule. Your children are just as much yours as they are the other parent’s. If you are having concerns regarding custodial schedules, call our office at (334) 819-4810. We would be happy to help you figure out the best options for your schedule.

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