Divorce Depositions

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 Divorce Depositions

A divorce deposition is an event that takes place during the discovery process. Discovery is the process in which the parties exchange information prior to a trial. A deposition is a legal process in which the attorney for one of the parties requires a witness to appear in a place that is not a courtroom and answer questions under oath. It is an official court proceeding, but it takes place outside of the court and no court personnel are present. A deposition usually takes place in an attorney’s office.

The witness must answer questions put to them honestly because they are under oath. The questions are asked by the attorneys, with the attorney who noticed the deposition and required the witness to appear asking questions first. In the case of a divorce deposition, the deposition is one that takes place in the course of a divorce proceeding.

It has two main purposes:

  • To uncover relevant information and documents from witnesses with knowledge of events relating to the case;
  • To obtain statements that can be used as evidence.

Depositions are a necessary part of almost every divorce proceeding. The parties use the information obtained from depositions in a variety of important ways. It is conceivable that there would not be any depositions in a divorce.

For example if the parties do not have children or much in the way of assets, depositions may not be necessary. Or, the parties may negotiate a settlement of the issues in their divorce, so that depositions are not needed. However, if any issues in the divorce are contested, depositions are likely to occur.

The parties can assess the strength, or weakness, of their case. They learn about other possible witnesses. They learn about documents that may contain valuable evidence. They can begin to organize the case they plan to present at a trial, if a trial goes forward. The parties may make important decisions about settling the case based on the information from depositions, such as child custody, child support, and division of property. Both parties are continuously assessing the evidence to make decisions about the prospects for settlement.

Depositions can be held any time after an answer has been filed. However, it is generally considered to be a good strategy to serve Requests for Production of Documents on the other parties first. Then the party who wishes to take a deposition reviews the documents they receive and identifies any of them they want to ask about at the deposition.

The procedures for scheduling the deposition of a party to the divorce and that of a person who is not a witness are somewhat different. In the case of a party, the attorney who wants to take the deposition would contact the party’s attorney and work out a mutually agreeable date and time. The attorney who wants to take the deposition would then send out a formal “Notice of Deposition” for the date and time to which the parties agreed.

In the case of a person who is not a party to the court action, the attorney would have a subpoena served on the witness. This witness who receives the subpoena may well consult an attorney, who might then contact the attorney who issued the subpoena and try to reschedule, if necessary. If the attorney taking the deposition wants the witness to bring documents, they would issue a subpoena duces tecum, which requires the witness to appear at a deposition and bring along certain specified documents.

The process of actually questioning the party or the witness is the same. The person is administered the oath of truthfulness. The attorney who issued the notice or subpoena questions the witness, and then the other attorneys take their turns asking questions.

Who May Be Present at a Divorce Deposition?

Generally, the persons present at a divorce deposition include:

  • The spouses, or parties to the divorce;
  • Their respective lawyers; and
  • A court reporter who transcribes the questions and answers verbatim..

In some cases, a guardian ad litem may be present in order to observe the deposition and later evaluate the testimony of the parties. This person is basically an attorney appointed by the court to represent the interests of the children of the marriage. A judge is never present at divorce depositions.

As noted above, any person who might be called as a witness in the trial may be requested to appear at the deposition. People whose attendance is required at a deposition receive a “Notice of Deposition” which formally requests their presence at the deposition.

What Type of Information Is Obtained in Divorce Depositions?

Each divorce deposition will be different, at least in part, depending on the issues that are raised in the divorce proceeding. For example, some divorce cases will focus mostly on property issues. Others may focus more on child custody or support issues.

In every case, the credibility of the witnesses is an issue. This means that an issue is which witness is more believable than others. In general, deposition questions will touch upon the following kinds of information:

  • General Information: This may include information about the parties, such as their name, contact information, profession, education, and their relationship to the other parties;
  • Specific Events and Dates: Sometimes the outcome of a divorce case will turn on a specific event, such as the infidelity of one of the parties or an authorized transfer of property. Such events will usually be discussed in detail in order to gather facts for the trial;
  • Witness Information: Witnesses will be thoroughly interviewed to obtain their name, identity, profession, and their role in the case;
  • Expert Witnesses: Expert witnesses are deposed in order to verify their qualifications, find out what their expert opinions are and what facts support their opinions. Every party wants to know how the experts can be expected to testify at trial;
  • Information Previously Reviewed: The person answering the questions may be asked whether they have spoken with anyone or reviewed documents in preparation for the deposition. They can be asked any other question that seeks information relevant to the case. However, the person cannot disclose information that is protected by a privilege, such as the attorney-client privilege;
  • Documents: A deposition is also a time for the parties to request documents from the other party. Questions are likely to be directed to the documents that have been previously exchanged. However, documents should not be brought to the deposition unless they have been specifically requested by the other party through the Notice of Deposition or a Deposition Subpoena, often referred to as a “subpoena duces tecum”.

Some questions that are commonly asked at a divorce deposition would include:

  • “What is your name, age, and profession?”
  • “During marriage, did your partner provide care to your children?”
  • “Do you and your partner have any shared bank or retirement accounts, such as a joint bank account or a shared retirement savings account?”

Thus, the questions that are asked in a deposition can be expected to range from very broad to very specific. While a party never has to disclose any confidential information, it is best to answer questions in a manner that is cooperative and forthright.

A person who is a party to the divorce can expect to be prepared for their deposition by their attorney, and should take direction from their attorney regarding their deposition strategy. Often an attorney reminds a client to answer the questions asked, but not to volunteer any information for which the question does not ask.

Do I Need a Lawyer for a Divorce Deposition?

If you have filed for divorce or if your spouse has done so, you want to work closely with an experienced divorce lawyer. Your attorney is able to advise you and prepare you for depositions and other types of meetings.

Also, your attorney can help you locate and organize all the relevant documents and information that are needed for settlement negotiations and trial, if there is one. Your attorney can advise you about settlement negotiations and what is the best agreement you can expect from the divorce proceedings.

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