When you file for divorce, each party can request relevant information from the other during a process known as discovery. One of the ways to get discovery information is to ask the opposing side to answer written questions, called interrogatories. Sometimes, however, you want to ask questions in person and a deposition provides that opportunity.
Purposes of a Deposition
Taking the deposition of your spouse or another witness, called the deponent, allows you to find out facts about your case that you may not already know. It also preserves testimony that you can use in court in certain circumstances. For example, if the deponent admits to wrongdoing in a deposition under oath, you may be able to use the deposition transcript to introduce the admission into evidence in a court trial. This is also true if a witness testifies differently at a court hearing or trial than they did during a deposition. Finally, if the witness is unavailable to testify at trial, the court may allow you to use the deposition testimony instead.
Scheduling the Deposition
The spouse taking the deposition sends a notice with the time, date and place of deposition to all parties in the case, or their attorneys if counsel represents them. If the deponent is not a party, they must be served with a subpoena, which is a type of court order requiring them to come to the deposition. The spouse setting the deposition hires a court reporter to record the deposition testimony. After the deposition, the court reporter transcribes the notes and puts the testimony into booklet form.
Day of Deposition
Depositions take place in an attorney’s office, court reporter’s office or in a rented conference or hotel room. Once everyone arrives, the reporter places the deponent under oath and the person taking the deposition -- usually your attorney -- asks the deponent questions relevant to the divorce proceeding that may lead to the discovery of relevant information. For example, if you do not have children and are seeking a divorce in a “no-fault” state – meaning it does not matter which side is at fault – a question about a marital affair is likely irrelevant. In a “fault” state, however, questions about infidelity may not only be relevant, but may dominate the deposition. Once the person taking the deposition finishes, the other parties may ask the deponent questions as well.
When divorcing, people divide marital property and debts, and determine child and spousal support payments. Because of this, it is important to know about the income sources of both sides, amount of money in financial, savings and investment accounts, and property each party owns. Questions about a spouse’s suitability to care for any children are also common at depositions. For example, the effect of a parent’s work schedule on his ability to take care of the children, ability to provide a safe home environment, and convictions of driving while under the influence of alcohol or drugs can be appropriate areas for questioning.