“Your spouse’s attorney is going to take your deposition.”
Hearing that your spouse’s attorney wants to “take” your deposition can make you feel uneasy if not downright nervous.
However, depositions are a common procedure in divorce cases that are surprisingly mundane if you are properly prepared. Proper preparation includes understanding the depositions process, reviewing sample deposition transcripts and specific depositions questions, and then sitting down with your attorney to explore particular questions that will pop up in your case.
What is a Deposition Exactly?
A deposition is a compelled sworn statement. It is compelled because the other side has demanded that you sit for the deposition; you did not raise your hand asking to sit through this. It is sworn because a court reporter will be in the room with you, your attorney, the other attorney and (usually) your spouse.
The court reporter will ask you to raise your hand and tell the “truth, the whole truth, and nothing but the truth” before the other attorney begins asking you questions.[/vc_column_text][/vc_column][/vc_row]We have put together a checklist that suggests areas that may be covered in a discovery deposition. You can download the checklist here.
Why Divorce Lawyers Take Depositions?
Lawyers take depositions to learn what you or a third party might say in court. Depositions are a discovery device, and as a result, there is quite a bit of leeway in what can be asked by the attorney. So while questioning at trial or in front of a judge might be limited to what is relevant to the issues in your divorce, almost any questions in depositions are fine so long as they might possibly lead to the discovery of relevant, admissible evidence.
Note the deposition is the one chance for the opposing divorce lawyer to talk to you directly before trial. As a result, expect the other lawyer to try to elicit facts from you that are favorable to his client. Likewise, the other attorney may try to flesh out what it is, exactly, that you are seeking in the divorce.
Finally, in certain cases, an attorney may set a deposition to try to make you feel uncomfortable and put pressure on you. Even in this case, there is nothing to worry about…that’s why you hired your lawyer to prepare you and protect you in the deposition if needed.
Timing of Taking Depositions
There is usually quite a bit of leeway in when the depositions happen during the process. However, a divorce case must be filed for an attorney to have the ability to set and schedule a deposition (although at any time one party can voluntarily sit down for a sworn recorded statement.)
As a tactical matter, depositions are usually done near the end of the case before trial. This is for a couple of reasons, including:
- Depositions are not appropriate in every divorce case — in many cases, there is substantial agreement as to the facts of the case, and the real issue is just trying to bridge a settlement. In these cases, depositions might be unnecessary and a waste of time and money.
- We often want most or all of the discovery done before taking depositions — remember, a party gets one shot at depositions, absent unusual circumstances. As such, it’s usually best to make sure all financial documents have been reviewed and received so that the divorce lawyer can use the deposition to “fill in the blanks.”
Where Does the Deposition Take Place?
Depositions can take place anywhere that the people involved agree.
In most cases, we take depositions at private offices owned by court reporting services. Because we need a court reporter to sit down and type up everything said during the deposition, it is often most convenient to just go to their office.
In many cases however, we take the depositions at our office or the other attorney’s office. Really, it is just a matter of what is convenient for everyone involved.
Sample Divorce Deposition TranscriptsDeposition Example #1
Deposing an under-employed housewife claiming an inability to work due to a disability. The amount of alimony depended on her ability to contribute to her financial needs. Download[/vc_column_inner]Deposition Example #2
We deposed a Wife who moved from Pasco County to Pinellas County upon filing divorce in an attempt to minimize our client’s time with the kids. Download
Deposition Preparation for the ClientTo help you prepare for your deposition, we have a checklist of “do’s and do not’s” to review. This is the exact copy we give to our clients to prepare in advance.
Divorce Preparation for Your Attorney
We lawyers don’t just walk into a deposition unprepared. Since we often only have “one bite at the apple,” it is important that we do it right the first time. We want to make sure:
- The deposition notice is filed with the court and properly served on opposing counsel;
- Have the appropriate attached deposition subpoena duces tecum if we are forcing the witness to bring documents to the deposition;
- Reviewed your full and complete disclosure;
- If we are deposing your spouse, make sure we have reviewed his or her full and complete disclosure;
- Made sure our documents for the deposition are marked in advanced and ready for impeachment;
- Review our deposition cheat sheet so we are on top of any unique issues that may arise; and
- Prepare witness questions and/or a checklist.
Will My Divorce Attorney Depose My Spouse as Well?
Very likely. Your attorney will want to have the same opportunity to question your spouse that the opposing attorney had. However, whether or not the deposition takes place on the same day as your deposition is a tactical and/or practical matter.
Tactically, your attorney may wish to wait for more discovery (i.e. financial documents) to arrive before the deposition. Practically, there could be scheduling conflicts for one of the lawyers or parties that make knocking out both depositions “back to back” difficult.