Family Law

How Divorce Depositions Work and What to Expect at Yours

By Aaron Thomas, Attorney

During your divorce, your spouse’s attorney may want to take your deposition, where you will be required to answer questions under oath for several hours. What you say at a deposition is considered testimony, which can be used in later court proceedings. For many spouses, this is one of the most intimidating parts of the divorce process, but having a sense of what to expect can reduce some of the stress.

The Basics of Your Deposition

Your spouse’s attorney will want to take your deposition in order to gather evidence related to your divorce case. Both your attorney and your spouse’s attorney will attend, along with a court reporter, who will record everything that's said using a stenograph machine. After the deposition, the court reporter will transcribe all the questions, answers, and any attorney objections (or other discussions on the record) into a written transcript, which you will have a chance to review. Your spouse's attorney may also videotape the deposition.

Normally, your spouse can attend the deposition as well. Both attorneys can ask questions, although your attorney won’t ask questions unless it’s necessary to clarify a problematic answer. Divorce depositions usually last between two and eight hours, but in some cases, may continue over the course of several days (consecutive or spread out over time).

Before Your Deposition

Your spouse’s attorney must send you a “Notice of Deposition,” which will contain the deposition date, time, and place. If the attorney plans to videotape you, he or she will need to include that information in the notice.

Normally, your spouse’s attorney will coordinate with your attorney before sending the notice in order to schedule a date that works for everyone. The deposition notice may also include a subpoena (request) for documents. Unless your attorney identifies a valid objection to the requests, you’ll need to bring responsive documents with you to the deposition.

Preparing for Your Deposition

Your attorney should help you prepare for your deposition. While your lawyer may give you advice that's specific to your case, there are some general tips to keep in mind when you're getting ready to be deposed.

It's a good idea to dress professionally for your deposition, even if it's not being videotaped; you want to communicate to the other attorneys that you’ll look presentable on the witness stand if the case end up in trial.

You should understand that your deposition is not your trial. Your deposition is an opportunity for your spouse’s attorney to gather evidence against you. Resist the urge to argue your entire case at your deposition; answer only the questions that are asked. While the attorneys may use portions of your deposition at trial, the judge likely won’t ever see the entire deposition transcript. Your spouse’s attorney wants to get you talking as much as possible so you’ll spill information that could boost your spouse’s case. Don’t help build the case against you. Save your best defenses for trial, when it counts.

Don’t rush your answers. When your spouse’s attorney asks you a question, pause for a moment to collect your thoughts. This allows your attorney an opportunity to object to the question if it’s improper. Even though most of the objections that your attorney can make in court aren’t applicable in a deposition, you’ll still want to allow your attorney time to jump in when necessary. Also, you don’t want to blurt out anything that could hurt your case. Taking your time can allow you to give thoughtful answers, rather than a rushed response you might regret later.

If you don’t know the answer to a question, don’t try to guess. It’s fine to say that you don’t remember, or that you can’t recall. Your spouse’s attorney may ask you questions about events over your entire relationship with your spouse, and you don’t want to make a statement under oath that can be proven wrong later. No one expects you to remember every detail from your entire marriage. Also, if you’re confused by a question, ask the attorney to clarify before you answer.

Remain calm during the deposition. Some attorneys may attempt to get under your skin so that you lash out during the deposition or say something harmful to your case out of anger. Don’t do your spouse the favor of losing your temper. No matter how the opposing attorney behaves, stay polite and professional. Your attorney is there to protect you if the other attorney becomes abusive.

If you have questions during your deposition, you should ask for a break to consult with your attorney.

After the Deposition

After the court reporter completes the transcript of your deposition, you’ll have an opportunity to review it for accuracy. You’ll need to read it over and correct any errors within a certain time period, usually around 30 days. If your case goes to trial, you should re-familiarize yourself with your testimony so that you don’t accidentally contradict yourself.

If you have additional questions about your divorce deposition, contact a local family law attorney for advice.

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