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Delk & Tomlinson Law | Family Law for Men Montgomery AL


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:

Divorce and Divorce Adjustment:

What is Divorce Counseling?:

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

Co-Parenting Counseling:

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.

By delktomli48103527, Mar 10 2017 09:53PM

Often mediation is a tool used to settle divorce and child custody cases. Some parties willingly submit to mediation, while others are ordered by the court to mediate the case prior to having a final hearing. Mediation is a form of alternative dispute resolution that allows each party to have some control in reaching an agreement, rather than leaving the decision to the Judge. These are negotiations, which means that at a successful mediation, neither party leaves feeling like they won.

In most family court mediations, the parties and their attorneys are in separate rooms. The Mediator moves between the two. This is beneficial because tensions are usually high and, it is much easier to speak frankly with the Mediator outside of the opposing party’s presence. The Mediator’s job is to encourage the parties to settle and facilitate a settlement that is beneficial for all parties involved. The Mediator does not discuss anything you say with the opposing party unless you give him or her permission to discuss it with them. The Mediator listens to both sides and, relays offers and counter offers back and forth between the parties. Either a settlement is reached or the parties reach an impasse, and a good Mediator realizes settlement is impossible. This can be a long process. Be prepared, bring a book, and make sure your cell phone is charged.

If a settlement is reached, the Mediator will draft the settlement, and both parties will sign. At that point, it is a binding agreement and all parties are to act within the bounds of the agreement. Once you reach an Agreement and sign, it is very difficult to retract. If a settlement is not reached, the parties walk away and prepare for a final hearing. Nothing that occurs during the mediation can be used as evidence in a final hearing. This is to facilitate the parties’ willingness to negotiate to reach an agreement that all parties can live with.

Throughout the mediation, your attorney is there to help you negotiate to get what you ultimately need, and to ensure that any settlement reached is in your best interest.

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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