What is a divorce deposition?
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UPDATED: Jul 16, 2021
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A deposition is where the lawyer for either the plaintiff or the defense in a civil case takes the testimony of the opposing party in advance of a trial. Depositions are part of the divorce discovery process, which is the process by which the parties to the divorce gather facts about the case. In most civil actions, including divorce cases in many states, both parties have the right to engage in discovery and take depositions.
What is a Deposition?
At the deposition the party being deposed is put under oath, just as during testimony in a court room. In a divorce case, the other spouse’s lawyer will ask a wide range of questions relating to the case. The lawyer’s questions, and the party’s answers, are taken down by a court reporter and may perhaps be tape recorded and/or video-taped. A deposition is important because the answers to the questions given by parties during depositions may thereafter be used against the parties who gave the testimony. Once a party has answered a particular question during a deposition, the party is bound by the answer. Further answers to the same question which vary slightly, even if the variation is due to memory, are often used to discredit the party and call into question other testimony that party provided.
Any “admissions” in the testimony will likely be introduced by the other side at the trial or in a motion before trial. Further, testimony at the deposition will likely be used to cross-examine the party if their testimony at trial varies in even the slightest detail from the testimony at the deposition. In addition, if for any lawful reason a person who testifies at a deposition is not available at time of the trial, deposition testimony generally may be used as evidence.
At some depositions the witness or party may also be required to bring specified documents and records, and allow counsel for the parties to review them, to assist asking questions. If there is an issue about what happened on a specified date, the opposing party’s lawyer may ask that a party being deposed bring their diary or calendar in order to refer to the dates and refresh their recollection.
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Right to an Attorney
A party being deposed has the right to bring a lawyer, and should do so in order to protect their interests. A lawyer may prevent a party from damaging their case during a deposition by helping the party prepare, and by making sure the opposing party’s lawyer doesn’t ask for information to which they are not entitled and that questions are respectful and properly formed. A lawyer may object to questions that are vague, improper, misleading, or irrelevant in that they do not relate to the specific case.
Using the Information
The proper purpose of a deposition is to gather background and evidence and lock in the stories of the parties and the witness. By getting all the facts which the person may know down on paper, and obtaining whatever helpful admissions are possible from the other side, the lawyers can better prepare the case for trial. In some instances the testimony from the deposition will be used as part of a motion seeking judgment without a trial (such as “summary judgment”), or limit the matters that have to be presented at trial, or create an opportunity for the parties to settle the lawsuit.
The lawyer for the other side will also use the deposition session to evaluate how parties and witnesses are likely to appear to a jury. Will a party or witness appear likeable and believable, in command of the facts, and able to express them clearly? This information helps lawyers determine whether they want to take the case to trial or what they will offer to avoid going to trial. Lawyers also use depositions of their own clients to assess their performance and appearance under pressure and to be better able to advise their client what they should do in terms of accepting an offer to settle the case.
After the deposition is over, the court reporter will type out the transcript of the questions and answers, and all parties will receive copies. You will have the opportunity to review the record and make corrections, but generally the reporter’s version will prevail. In major cases, where cost is not a concern, both sides may have their own court reporters present. The original may be filed with the court, and become publicly available, depending on the rules of the court or state.
A divorce deposition, when properly handled, can go a long way in assisting a lawyer in negotiating a divorce agreement, settling issues such as child custody and property division, or prepare for trial should the two sides be unable to agree on the conditions of their divorce. If you are facing a divorce that requires depositions, contact an attorney for assistance before you answer any questions.