If you can't settle your divorce case through mediation, you'll likely go to court to end your marriage. While divorce court cases can take months to complete, they can be a good option for couples experiencing difficult break-ups.
Difficult divorces require plenty of evidence, including depositions. Your sworn testimony, along with comments from experts, could help lawyers prepare cases in court. And sometimes, a deposition is so persuasive that lawyers can collaborate on a solution and keep the couple out of court.
Here's what you need to know about the deposition process.
What is a divorce deposition?
It's easy to focus on the courtroom phase of a contested divorce, but in reality, lawyers spend months preparing their cases. During discovery, both sides can take witness statements or depositions.
A deposition is a question-and-answer session between a lawyer and someone familiar with the case. A court reporter documents every word said during this conversation, and those notes are shared with the opposing side. Depositions are sworn legal statements. You could face steep consequences for lying under oath.
Sometimes, people participating in divorce depositions become witnesses in divorce courtrooms. But sometimes, depositions end people's obligation to discuss the case.
Breaking down divorce depositions
Contested divorces involve two parties who can't agree. Both sides must argue the case in court, and often, depositions help lawyers understand the strengths and weaknesses of their cases. While depositions can feel somewhat informal, they are legal conversations that can have significant consequences.
Do you need a divorce deposition?
Lawyers must be very familiar with your case before arguing for you in court. Depositions can be an important research tool for subjects like income, debts, and child custody.
Three types of people could give depositions:
- Witness: Someone who saw and can describe difficult events could give testimony. Family members, babysitters, close friends, or co-workers could all fill this role.
- Experts: Someone educated in a specific area, such as a pediatrician or therapist, could discuss your case from the viewpoint of their specialty.
- Supporters: Character witnesses may not see a troublesome event (like a parent hitting a child), but they can speak to one side's good standing. Close friends, teachers, or members of the clergy could give this kind of deposition.
Attorneys often ask their clients to give depositions in a divorce case, too. Your lawyer might ask you to describe a specific event, a pattern of behavior, or a triggering moment that led to divorce.
Who listens to the deposition?
Depositions aren't held in courtrooms. Just a few people participate in these conversations, including these individuals:
- Witnesses: One person at a time comes to give testimony.
- Lawyers: A lawyer or paralegal asks the questions.
- Reporter: Courtroom professionals write down each word.
While your talk is private, the transcript is not. Everything you say in response to a question is carefully documented in the paperwork sent to opposing counsel.
How are depositions used in divorce cases?
Expert lawyers don't prepare scripted questions for courtroom cases. Instead, they prepare general topic outlines and improvise a bit while witnesses are on the stand. Depositions help them prepare.
Your lawyer could do the following:
- Compare: If both sides are asked the same question, how do they answer it? What might account for the discrepancy? This could be a good line of questioning in court.
- Identify: A witness deposition could help your lawyer pinpoint someone who must come to court to speak for you.
- Uncover: Depositions from the other side could help your lawyer understand case specifics and intricacies.
Depositions can also give lawyers leverage. If your testimony (and that of your witnesses) is overwhelming and compelling, your lawyer could push the other side to concede. You could end your case without ever going to court, which most parties would prefer. This can save you time, money, and stress in the long run.
How to prepare for a divorce deposition
People aren't surprised by divorce depositions. You're given plenty of time to clear your schedule and prepare to answer questions. Use this time wisely so you can be helpful when talking with your lawyer.
These tips can help you prepare:
- Refresh your memory. Look through your court documents, shared calendars, financial data, and other crucial evidence regarding your case. Your homework will help if you're asked for facts, figures, and dates during your deposition.
- Practice your answers. Attorneys often ask about your physical health, mental state, and finances. Craft appropriate answers with your lawyer, and respond the same way each time. Lawyers may change the wording of questions to trip you up. Practice can help you stay calm and focused.
- Role-play with friends and family. If possible, ask your lawyer for sample questions you can use for rehearsal. Focus on controlling your emotions and remaining calm, no matter how much the other side hammers you with uncomfortable questions. The more comfortable you can get with this uncomfortable situation, the better.
- Bond with your lawyer. If you object to a question or aren't sure how to answer, you can stop and ask for advice. Practice asking for help, and remember that your lawyer is always on your side.
- Ask for tips. Your lawyer has likely been through dozens of divorce depositions. Ask for advice on what to do and how to prepare for this important day.
- Keep responses brief. Answer a question as quickly and honestly as you can without adding information or embellishing the truth. Your lawyer may develop hand signals for you, just to help you wrap things up if you're talking for too long.
- Dress for success. Wear professional clothing, but focus on comfort. You're likely to feel uncomfortable and maybe even upset during the deposition. Uncomfortable clothes can make your distress more acute. Be prepared to be at the deposition for several hours.
While participating in a deposition can be intimidating, know that you're taking an important step toward ending your marriage and getting what you want for your new life.
References
Divorce Dilemma: Settle or Go to Trial? (February 2020). Forbes.
Getting Ready for Trial: Pretrial. Judicial Learning Center.
Office of the United States Attorneys. United States Department of Justice.
10 Tips for Young Lawyers Going to Trial. (February 2018). American Bar Association.
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