Frequently Asked Questions (“FAQ”)
on Depositions in Divorce Cases
Virginia Lawyer Offers Professional Answers on Divorce Depositions
Q: What is a Deposition?
A: In most civil actions, including divorce cases in many states, the lawyers for both parties have the right to engage in a “discovery” period to gather facts from the other party and sometimes from third-party witnesses. A deposition is a type of discovery in which the lawyer for a party takes sworn evidence to provide facts about the case. Lawyers gather depositions outside of a courtroom, but the information gathered may be entered into the record in a trial.
Q: What will Happen During a Deposition?
A: During the deposition, the spouse’s lawyer will ask the deposed a range of questions relating to the case. The deposed is under oath and should tell the truth to the best of their knowledge. A court reporter records all questions and answers exactly as they are said in a deposition so that the judge can refer to them later in the trial. An attorney may ask the deposed to attend the trial to provide testimony in-person. At the trial, if your testimony varies in detail from the written deposition, the court will cross-examine to determine why that variation occurred. If for any lawful reason the deposed cannot attend the trial, the court may use the written deposition as evidence.
Q: Do I Have a Right to My Lawyer During a Deposition?
A: Whether you are a party in the divorce case or a third-party, you always have the right to have a lawyer present at the deposition. Your lawyer will help you protect your interests as you give sworn testimony. Before you begin the deposition, your lawyer will spend time reviewing the facts of the case with you and preparing you to give a deposition. A deposition is not a social conversation, and, as such, your lawyer will tell you to listen to each question carefully before you answer, and not to volunteer any information or raise other issues. If at any point you do not understand the question, your lawyer will tell you that you can ask for a clarification. At the deposition, your lawyer may object to questions that are vague, improper, misleading, irrelevant, or if the question does not pertain to the case at hand. The lawyer can also prevent the other side from using the deposition to harass you, or from using the deposition to fish for evidence. Your lawyer may be able to assist you in avoiding unnecessary statements that will damage the case. At the end of the questioning by the other side, your lawyer can ask you questions that may bring out, clarify or better present your side of the story.
Q: What is the Purpose of a Deposition?
A: The purpose of a deposition is to gather evidence for the case. This includes determining background information, as well as locking in the stories of both parties and any witnesses. By getting all the facts written down via a sworn testimony and obtaining whatever helpful admissions are possible from the other side, the lawyers can better prepare the case for trial.
The opposing lawyer will also use the deposition session to test how you appear to a jury. This helps them determine whether they want to take the case to trial or what they might offer to avoid going to trial. Your lawyer will be able to assess your appearance under pressure, and can counsel you on what not to accept as an offer to get the case settled.
Q: Is There a Jury Present During a Deposition?
A: A jury is never present at a deposition, and a judge is only present during a deposition in a very small number of cases. The lawyers may call a judge or another court officer into the proceedings if a dispute arises about whether you have to answer a particular question. Your adversary (your spouse) may attend your deposition, as you may attend the deposition of other parties or witnesses in your case.
Q: What Happens After a Deposition?
A: 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 word will prevail. The original may be filed with the court, and become available, depending on the rules of the court or state. Your deposition can go a long way in assisting your lawyer in the litigation, either by way of settlement or at the trial. What you do at the deposition can help you or hurt you, depending upon your attitude, truthfulness, and appearance, as well as the skill of the opposing lawyer.