The term “divorce deposition” sounds much more ominous than it really is. Simply stated, it is a tool used by attorneys to obtain information from both parties during a divorce. The deposition is a formal interview conducted by court personnel like an attorney or a paralegal.
Depositions are not unique to family law, and while you may hear the term “divorce deposition”, that simply refers to a deposition that is being used in a divorce case. They are used for discovery in almost all areas of law where a transcript of testimony is necessary.
Depositions are usually held in an attorney’s office—the interview is conducted under oath and is documented by a court reporter. Statements made under oath are sworn to be true; lying, falsifying, or misleading statements will compromise the case and can be prosecuted as a felony. The penalty is up to 5 years in prison and a $125,000 fine.
Depositions are often used during pre-trial discovery to document each party’s sworn testimony regarding the case. Depositions usually seek to uncover information regarding income, assets, debts, and the desired outcome of the opposing party. Additionally, the deposition creates a permanent written record that becomes evidence that is admissible in court. This is particularly valuable when allegations of abuse or violence are present, as sworn testimony of the allegations can be useful in uncovering false accusations.
Depositions are not limited to just the spouses that are divorcing. Anyone that is relevant to the case can be deposed. People like co-workers, childcare providers, and family members can be called to answer questions under oath.
Depositions are not a requirement of every case, but are commonly used in custody cases and complex, contentious, or high asset divorces. Anything that is disclosed during a deposition can be used if a divorce agreement is not reached and the divorce goes to trial.
Because depositions are admissible during a trial, having consistency in your answers is crucial. Depositions can be used by opposing counsel (your spouse’s attorney) to cross-examine witnesses. During cross-examination, the opposing counsel will try to point out inconsistencies and undermine the credibility of the witness.
Depositions can be a powerful tool in the discovery process and in building the case. They provide an opportunity to proactively craft an argument that efficiently addresses allegations and circumstances that will be influential in the outcome.
When a case is finally heard by the court it can be anticlimactic for clients. Oftentimes the judge will review the documents and listen to attorney’s arguments, but usually the client won’t get an opportunity to speak. A deposition can be a client’s “day in court”. Depositions can cast a broad net for gathering information. Because it is a part of the discovery process, the deposition can address a wider range of topics and provide the client the chance to have their side of the story heard in its entirety. It can also offer an opportunity to ask questions that might not be allowed in court.
Regardless if you are using a deposition as part of your legal offense, or if the other party has requested it, it is important to be prepared. Your attorney will be able to help you prepare for the sworn questions and answers by outlining what to expect from the process.
Your lawyer will give you specific guidelines that address the unique facets of your case, but there are some general recommendations for surviving your first deposition.
There are many benefits to being truthful: You won’t run the risk of committing perjury; it will be easy to maintain consistency in your answers, and you won’t undermine your credibility. Lying in your deposition is never a good idea and can put you on the fast track for fines, jail time, and losing your case.
Understand the Questions
Make sure that you understand what the question is asking before providing an answer. If you don’t understand the question, or you didn’t hear it, be sure to get clarification. You can ask the attorney to rephrase the question or have the court reporter read the question back to you.
Don’t Volunteer Information
It is incredibly common for people to volunteer information above and beyond what is required. If you are asked a yes or no question, limit your answer to yes or no. If more information is required the attorney will ask follow up questions.
Additionally, don’t explain your answers. Be polite, provide accurate answers, but keep them short. Trying to explain or provide additional information can make you seem untrustworthy or dishonest.
Jokes, attempts at humor, and sarcasm rarely translate well into written documents. The court reporter will only record what is said, so attempting to be funny might result in making you seem crude or like you are avoiding the questions.
Seek Guidance From Your Attorney
Your attorney is there to guide you through the divorce and deposition process. They have most likely participated in numerous depositions and are well aware of potential pitfalls. Work with your attorney to prepare for the deposition—they will be able to guide you on addressing difficult topics and making the deposition as positive as possible.