Categories for

Remote Depositions

With the onset of Covid-19 and its accompanying changes to how we work, what do you do when it comes to taking and defending depositions?  Many attorneys and their clients are reluctant to conduct in person depositions.  As a result, video conferencing services, such as Zoom, Cisco Webex, and Skype, are now the new normal for remote depositions.

Preparing for and conducting a deposition when the deponent is not sitting in front of you presents its own set of logistical challenges.  Where will the deponent appear?  Where will the court reporter be?  What if you also need an interpreter?  Will the deposition be recorded?  Try to work out as many of these logistics as you can with opposing counsel before you set your date, if possible.

Serving the Notice and Preparing for the Deposition

When you send your deposition notice, specify that the deposition is going to be conducted remotely via video.  If possible, have the deposition notice indicate where each party will be located for the deposition.  Oftentimes this is coordinated by the deposition officer, so check with your reporter in advance and see what their procedures are.  For example, will each party appear via video conference, will breakout rooms be available, and confirm that the deposition will be recorded (do not assume it will just because it is via video).  Also, discuss with the court reporter and opposing counsel how exhibits will be handled – will you email them a certain number of days in advance?  Conversely, if you are requesting documents be produced the at the deposition, request that they produce them a few days before the deposition to give you an opportunity to review in case you want to use them during the deposition.

What about technical issues?

All the parties should be in a quiet area with sufficient lighting.  Familiarize yourself with Zoom, or any other video-conferencing platform you are using.  The middle of a deposition is not the time to discover that you have accidently shared your emails, your deposition outline, or a document you were drafting.  Consider using a device other than your everyday computer, such as an iPad or a separate laptop, if possible.  If not, make sure the only program running is the video-conferencing system you are using.  If you and your client are not able to be in the same room for the deposition, conduct a trial run with your client, so they will be more comfortable with the new procedures.  Depending upon internet connections and strength, a party may accidently be “kicked out” of the deposition.  The party hosting the video conference, ideally the deposition officer, will allow them back in.  Making sure that your client understands that technical glitches can happen and being patient will help them adjust to the remote deposition procedures.

Taking the deposition

In addition to instructing the deponent on the rules of the deposition, it is also advisable to inquire if anyone else is in the room and set some ground rules to avoid outside interference.  Inquire of the deponent if they are the only person in the room.  Ask the deponent to let you know if anyone else does come in the room during the deposition.  Ask the deponent if they are using anything that you cannot see (such as a cell phone, other documents, notes, etc.) and then instruct them to not look at anything other than the exhibits or documents produced while you are on the record.  Have the deponent agree to not communicate with anyone else besides you, including agreeing to not check email, text or use any other form of communication.  Particularly because nervous witnesses tend to speak over the party asking questions, this is a time to emphasize how important it is to listen to the question and respond when the question is finished.  This will allow for more time between speakers and give the court reporter time to adequately hear and record an accurate transcript.

With these tips in mind… Zoom off to your remote deposition!

By: Paula C. Clark, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

Photo 190765898 © Volodymyr MelnykDreamstime.com

Determining Child Support When a Parent(s) is a Military Member

Veterans Day is a federal holiday celebrated each year on November 11th as codified in Title 5, U.S. Code, section 6103. It was originally established as Armistice Day to recognize the signing of the armistice ending World War I, which was executed in the 11th hour of the 11th day of the 11th month in 1918. Each year, Dias Law Firm, Inc. uses the occasion to bring to light special circumstances that may affect military veterans and active duty service members.

General Principal Applicable in All Child Support Cases

California’s rules for determining child support are no different for military members than for anyone else. The trick is in recognizing all of the military member’s income, determining its tax consequences, and understanding its permanence. Let’s start by understanding some of the underlying principles that apply to everyone as defined in Family Code section 4053:

  • A parent’s first and principal obligation is to support the parent’s minor children according to the parent’s circumstances and station in life.
  • Both parents are mutually responsible for the support of their children.
  • Each parent should pay for the support of the children according to the parent’s ability.
  • The state’s top priority is the interests of children.
  • Children should share in the standard of living of both parents, regardless of which household has custody of the children, and even if doing so also improves the standard of living for the other parent’s entire custodial household.

The “Guideline” Formula

California law establishes an algebraic formula that seeks to fairly and equitably establish an appropriate amount of child support based on several factors. The formula, codified in Family Code section 4055, is sometimes referred to as the “guideline” formula. The factors in the formula are:

  • The amount of time the children spend with each parent,
  • The high earner’s “net disposable income” (annual gross income from all sources, less certain specific deductions),
  • The combined “net disposable income” of both parties,
  • A multiplier that varies according to the combined net disposable income, and
  • Another multiplier that varies according to the number of children.

We’ll save the intricacies of the formula for another blog, but one of the most important factors of the guideline calculation is accurately determining the net disposable income of each party. This can be a little confusing for military members.

Defining “Gross Income” for Military Members

In general, “gross income” is broadly defined under Family Code section 4058. It includes, but is not limited to:

  • Commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, social security (SSA) benefits, spousal support (from another relationship), income from proprietorship of a business, employee benefits, and self-employment benefits.

Courts have interpreted this to mean that virtually any gain or recurrent benefit derived from labor, business property, or from any other investment of capital constitutes gross income. California law excludes only a very few specific sources of income from use when calculating child support, including:

  • Child support payments, and
  • Need-based public assistance programs such as
    • TANF (cash aid – formerly known as welfare),
    • SNAP (food stamps),
    • SSI (federal supplemental security income),
    • SSP (California’s State Supplemental Program), and
    • Need-based VA benefits (not to be confused with VA disability benefits, which are considered income for the purposes of the guideline formula).

Several appellate court cases have clearly defined employee benefits that are regularly received, and specifically including military benefits and allowances, to be included in the definition of gross income. Therefore, all of the following, and potentially other categories of military pay should be considered income:

  • Base pay,
  • BAH (or the BAH rate for military housing provided in kind),
  • BAS,
  • Uniform allowance,
  • Sea pay,
  • Re-enlistment bonuses,
  • Hazardous duty pay,
  • Hardship duty pay,
  • Hostile fire pay,
  • Assignment incentive pay,
  • Family separation allowance, and
  • Family subsistence supplemental allowance.

Net Disposable Income

Once the gross income from all sources is determined, the guideline formula requires deductions for certain items to arrive at the Net Disposable Income. These deductions include:

  • State and federal income tax liability resulting from taxable income.
  • Self-employed worker’s additional contribution (the employer’s portion) to Federal Insurance Contributions Act (FICA). This may impact military members or veterans who also run a business.
  • Mandatory union dues and retirement contributions.
  • Health insurance premiums for the parent and children.
  • State disability insurance premiums.
  • Child or spousal support actually paid (in another relationship).  
  • Job-related expenses, if allowed by the court.
  • A discretionary “hardship” deduction (often allowed for children of other relationships for whom child support is not paid, such as a child from a new marriage living in your home).

Often overlooked is the impact of the “non-taxable” status for the various categories of income listed above. For example, BAH, BAS and some veterans’ disability payments are not taxable. It is important to divide the payments received into taxable and non-taxable subtotals so the guideline calculation can accurately reflect the tax consequences and net disposable income of each parent after taxes.

The guideline calculation itself is often relegated to a computer program which accepts all of the variables mentioned above (including taxable and non-taxable income and the visitation time share ratio), and additional tax filing status information (single/married/head of household and number of exemptions) then calculates the net disposable income after determining the impact of taxes and other deductions on each parent’s gross income.

Non-Permanent Income

Some types of military pay are awarded on a temporary basis while certain conditions apply. Examples include hazardous duty pay, hostile fire pay, and family separation allowance. Others, like re-enlistment bonuses could be paid as a one-time incentive. It would be unfair to continuously impute those sources of income to the military member even after they have stopped. There are several ways a court could manage temporary pay and allowances when determining child support, but only if your attorney understands the situation and the intricacies of the various approaches available.

Dias Law Firm Is Here to Help

We live and work in a community with a large population of military personnel and veterans. Many of our attorneys and staff members have also served in the military or served alongside their military spouses and parents. We know the difficulties veterans and their families face. We can help the court understand your case and ensure the law is properly applied to your specific circumstances. If you are faced with a divorce, child custody, support, or any other legal matter, Dias Law Firm is here to help.

By: David M. Lange, Esq.

For the general public: This Blog/Web Site is made available by the law firm publisher, Dias Law Firm, Inc., for educational purposes. It provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

For attorneys: This Blog/Web Site is informational in nature and is not a substitute for legal research or a consultation on specific matters pertaining to your clients. Due to the dynamic nature of legal doctrines, what might be accurate one day may be inaccurate the next. As such, the contents of this blog must not be relied upon as a basis for arguments to a court or for your advice to clients without, again, further research or a consultation with our professionals.

Photo 125091471 © Anton Medvedev | Dreamstime.com