Depositions in Divorce and Family Law Cases
Most people involved in a divorce, paternity action, high-asset divorce, or another family law matter would prefer to resolve the case without going to trial. Litigation can be emotionally demanding, time-consuming, and expensive. Whenever possible, parties often attempt to settle their disagreements through negotiation, settlement proposals, mediation, or other forms of alternative dispute resolution.
Unfortunately, an agreement is not always possible. The parties may disagree about parenting time, decision-making authority, child support, maintenance, the division of marital property and debts, business interests, or other important issues. Even after exchanging settlement offers and participating in mediation, the parties may remain far apart.
When significant factual disputes remain, depositions can play an important role in the discovery process. A deposition may help the attorneys learn more about the opposing party’s testimony, evaluate the strengths and weaknesses of the case, and prepare for further settlement discussions or trial.
What Is a Deposition?
A deposition is a formal question-and-answer session conducted under oath. It commonly takes place in an attorney’s office, by videoconference, or at another agreed-upon location rather than in a courtroom. The person answering the questions is known as the “deponent.”
Attorneys for the parties generally attend the deposition, and a court reporter creates a written transcript of the questions and answers. Because the testimony is given under oath, a person must answer truthfully just as they would if testifying before a judge. Depending on the circumstances and applicable court rules, a deposition may also be recorded by video.
Although a deposition usually occurs outside the courtroom, it remains a serious legal proceeding. The testimony may affect settlement negotiations, pretrial motions, and the presentation of evidence at trial. If a witness later gives materially different testimony, the deposition transcript may be used to challenge the witness’s credibility, subject to the applicable rules of evidence and procedure.
How Can Depositions Help in a Family Law Case?
Depositions allow attorneys to obtain detailed information that may not be available through written discovery alone. Written interrogatories and requests for documents can provide valuable facts, but a deposition gives an attorney the opportunity to ask follow-up questions and seek clarification in real time.
Depending on the issues in the case, deposition questions may address:
- The proposed parenting schedule and each parent’s involvement with the children
- Disagreements concerning custody or important parenting decisions
- Employment, income, bonuses, benefits, and other compensation
- Bank accounts, investments, retirement accounts, and real estate
- Business ownership, valuation, and financial records
- Marital and separate property claims
- Existing debts and financial obligations
- Requests for child support or maintenance
- Allegations of misconduct, abuse, substance misuse, or dissipation of assets
- The factual basis for a party’s requested outcome
A deposition can help an attorney determine which facts are genuinely disputed and which matters may be resolved by agreement. It may also reveal missing documents, identify additional witnesses, or uncover subjects requiring further investigation.
Can a Deposition Encourage Settlement?
Depositions do not guarantee that a case will settle, but they can sometimes move negotiations forward. Before a deposition, the parties may have different understandings of the facts or may be uncertain about how a witness will testify. Once the testimony is placed on the record, the attorneys and parties may be better able to assess the risks of proceeding to trial.
A deposition can also require a party to explain the factual basis for a position. For example, a parent may be asked why a particular parenting arrangement is believed to serve the child’s best interests, or a spouse may need to explain a disputed property claim. This process can clarify each party’s position and help the attorneys identify areas where compromise may be possible.
Settlement discussions themselves may be confidential or otherwise protected, however, and the permissible scope of deposition questions depends on the law and procedural rules governing the case. The primary purpose of a deposition is to obtain information and preserve testimony—not simply to require a party to defend prior settlement offers.
How Depositions Help Prepare a Case for Trial
If the parties cannot reach an agreement, deposition testimony can help the attorneys prepare for trial. The transcript may show how a witness is likely to answer important questions, reveal inconsistencies, and help counsel decide which documents or witnesses should be presented in court.
Depositions may also make a trial more focused and efficient. By identifying the central factual disputes in advance, the attorneys can concentrate on the evidence most relevant to the unresolved issues. In appropriate circumstances, deposition testimony may also be used at trial when permitted by the court and applicable rules.
Preparing for a Deposition
Careful preparation is important. Before the deposition, an attorney may review the pleadings, prior discovery responses, financial records, communications, and other relevant evidence with the client. The client should understand the subjects likely to be discussed and the importance of giving truthful, accurate, and complete answers.
A person appearing for a deposition should listen carefully to each question, allow the question to be completed, and ask for clarification if anything is unclear. Answers should be based on actual knowledge rather than speculation. Because every case presents different facts and legal issues, clients should speak with their attorney about what to expect and how to prepare.
For more information, you can also read our articles, “Depositions in Family Law” and “Depositions and Cross-Examinations: Best Practices and Strategies.”
Contact Our Multi-State Divorce and Family Lawyers
If your divorce or family law case involves a deposition, the attorneys at Stange Law Firm, PC can help you understand the process, prepare for questioning, and evaluate how the testimony may affect your case. We represent clients in divorce, paternity, custody, support, property division, and other domestic relations matters.
To schedule a confidential consultation at one of our convenient locations throughout the United States, contact us online or call 855-805-0595.
