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Delk & Tomlinson Law | Family Law for Men Montgomery AL

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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, 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.

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.

By delktomli48103527, Nov 18 2016 09:35PM

We want to give you an idea of what to expect during the litigation process. Litigation can be confusing, time consuming, and a miserable process in general. However, in this case, knowledge of the process can sometimes alleviate some of the stress. Consider the following as a general timeline of what you can expect:

• Within a week of retaining: We will begin work on your case. Usually, this means drafting documents on your behalf. Once the paperwork has been drafted, you will be called to the office to sign them.

• Within a month of retaining: Generally, if you are responding to a complaint, we only have thirty days to respond, so we will have filed your answer. We will also file “Discovery” in certain cases. Discovery is simply one party asking the other party questions that they must answer.

• Within three months of retaining: If there are temporary issues in your case, we will file a motion with the Court asking for temporary relief.

• Within six months of retaining: (Hopefully sooner!) Depending on the county, we will hopefully have a final hearing at this point. Again, the timing for a final hearing is almost COMPLETELY county and even judge specific. It also depends on how complicated your case is. Things like children, businesses, and retirement could extend the time necessary to adequately prepare for a case.

Individual judges have control over their dockets, and over scheduling hearings. There are over 50 Circuit Court Judges in the State of Alabama who hear family law matters. This means there are over 50 different dockets, and over 50 different ways of doing things. What could take two months in a rural county could take six months in a busy circuit. There are also issues like settlement and mediation that will fall somewhere in the midst of all of these things.

We know waiting can be frustrating. We strive to keep in regular contact with our clients regarding their status. Please feel free to call us if you have any questions, or if you’d like to schedule a consultation.

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