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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, 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, Feb 24 2017 10:14PM

This blog post is going to be much more personal than our normal posts. Delk and Tomlinson has begun taking on adoption clients. Our Associate Attorney, Katie Hoyt, will be handling these cases. She has a special motivation to see children permanently placed with loving families. Katie’s brother was adopted. In this post, Katie will tell the story of her family’s experience with the adoption process:

My parents were married in 1985 and planned on having multiple children. Unfortunately, when I was a toddler, my mother found out that she was unable to have any more children. Thus began their journey through the adoption process.

I was seven years old when my brother came home, but growing up we have both heard the story so many times that I feel comfortable in describing the process.

My parents worked with troubled youth through the Department of Human Resources (DHR), both in group homes, and administratively. The process began with them going to the DHR to be placed on a foster parent/adoptive parent plan. This required a home study and some classes. Back then, DHR had a list of approved organizations to complete the home studies required to adopt. These organizations required home evaluations and classes that my parents attended. The whole process took about a year.

Once approved, my parents were asked to describe the child that they would be willing to adopt. My parents were not difficult, they simply wanted to grow our family. Their only requirements were that the child be younger than I was, and that the child had not been sexually abused. They did not care what race or ethnicity the child was, nor did they shy away from children with disabilities, or children who had suffered some other form of abuse. They were prepared to take almost any child into our home and raise him or her as my sibling.

During this process, I had no idea what was going on. My parents didn’t want to excite me and have it not work out for some reason. However, at some point after they were approved and placed on a waiting list, I can remember them sitting me down and having a conversation about it with me.

I don’t remember what was said exactly, I only remember that I walked away from that conversation extremely proud of myself. I believed that I, at six years old, had just convinced my parents to get me a little brother or sister. Of course, that worked out for everyone. My parents knew that I liked to be right and win an argument, even at such a young age. I later convinced my baby brother that he was all my idea.

My parents patiently waited for a call that there was a child who met the very broad criteria. Even with so few wants, the waiting went on and on.

Meanwhile, a friend of my father’s boss mentioned that she had recently taken a friend of her daughters into her home. The friend was struggling to raise a three-month-old baby boy and had mentioned placing him for adoption if she found the right family.

My father met with the baby’s mother. From that meeting, the biological mother of this beautiful baby boy, decided that she wanted to meet my mother to decide if these were the people she wanted to raise her child. Both of my parents met with her and the baby’s biological father. The two of them decided that my parents were supposed to be their baby’s parents. The biological parents and my parents went in search of attorneys who could help them through this process. My parents did not mention any of this to me. This baby was a miracle and an answered prayer, but they were unsure if it would really come true.

The parties involved were able to find representation to help them through the legalities and finalize the adoption. My parents brought home the most beautiful baby boy and introduced me to my baby brother. He is seven years younger than me, but he has always been my big-little brother. We may not be blood, but he has and will always be my brother. We share the same bonds, experiences, triumphs, inside jokes, protectiveness, and memories. We are siblings, and I could not love him more.

The road to finding my brother was filled with highs and lows for my parents. The waiting was torture, for my mother especially, but in the end, that waiting led my family to my brother. He was definitely worth the wait. He has enriched all our lives and turned into an amazing man.

I want to help our clients find their forever families, whether that is through adopting a step-child, a child you have yet to meet, or another family member. We will also be ready to represent any parents who make the selfless decision to place their child for adoption.

If you would like to schedule a consultation, please contact our office at (334) 819-4810.

By delktomli48103527, Dec 30 2016 09:44PM

Over the summer, Governor Bentley signed a bill abolishing common law marriages after January 1, 2017. No new common law marriages will be recognized in Alabama. However, all couples who meet the requirements of common law marriage prior to January 1, 2017 will continue to be recognized as common law married under Alabama law.

Common law marriage is no longer recognized in many states. The requirements vary greatly from state to state. In Alabama, the law requires that (1) both parties have “legal capacity” to marry – aka they are both of age and sound mind; (2) you both agree to “get and be married;” and (3) hold yourselves out as “husband and wife” to friends, family, and the public. Contrary to popular belief, there is no time requirement for cohabitation.

The courts in Alabama are asked to determine whether a common law marriage exists in will contests and divorces. In will contests, the common law spouse will claim a portion of the deceased estate. In divorce cases the common law spouse will file for divorce asking for alimony or child support, while the other party claims there was no marriage. The removal of common law marriage makes what was a very gray area of the law, very black and white. Do you have a marriage certificate or not? If not, there is no marriage.

For those of you in a common law marriage prior to January 1, 2017, the Alabama Courts will continue to evaluate the validity of your marriage based upon factors that tend to prove the three requirements of common law marriage laid out above.

Some commentators are concerned that same-sex couples will be adversely affected by this law because of the possibility of their right to marry being denied in the future. If the right to marry a partner of the same sex is overturned in the future, these couples will not be able to fall back on common law marriage.

Others are concerned that the abolishment of common law marriage will force individuals to marry. We do not believe that this will be the case. However, if you do choose to stay in a long-term relationship without the benefit of marriage, especially with children, we recommend that you speak to an attorney about several things, particularly finances.

We hope that this clears up any questions you may have had regarding how this new law will affect you going forward. If you have any concerns or questions, please call our office at (334) 819-4810 to set up a consultation.

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