What Is a Deposition in a Divorce?

by Anna Green
During a deposition, the participants testify under oath.

During a deposition, the participants testify under oath.

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In its most general sense, a deposition is a form of testimony where participants in a case make oral statements under oath. A divorce deposition is usually a formal way of learning new information pertinent to a divorce case. For example, a deposition might cover issues pertaining to the couple’s assets, including ownership of joint property and the value of the property. A deposition might also cover child custody issues, including a discussion of each parent’s ability to care for the child. Although the exact rules and procedures for divorce depositions vary by state, depositions during a divorce generally take place only during contested divorces.

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Deposition Basics

A deposition is one part of the discovery process in a divorce case in which attorneys question the case's participants. More specifically, a deposition is a means of compiling evidence and formulating claims to bring up during the divorce trial. Thus, a divorce deposition may cover a broad range of issues, including parenting skills, grounds for the divorce, assets, facts about the marriage, joint liabilities, child support and spousal support. In most cases, the transcripts of the depositions will be entered into evidence at the divorce trial.

Depositions Vs. Courtroom Testimony

Like courtroom testimony, participants give their depositions under oath and with their attorneys present. Additionally, as with trial testimony, a court reporter records depositions and prepares a written transcript of the proceedings. Unlike a hearing, however, a divorce deposition is generally not held in a court room and does not have a judge present. Instead, it takes place in another location, such as in an attorney’s office or in a court conference room. Individuals participating in a deposition receive written notice of the time and place of the deposition in advance. Finally, spouses should note that judges do not attend depositions. Instead, attorneys from both sides guide the process.

Procedures and Questions

At the outset of a deposition, all participants providing testimony are sworn in. During the deposition, both spouses’ attorneys have the opportunity to ask questions of the participants. These questions might include fact-finding questions, such as the dates of critical incidents in the marriage, or general information, such as the participant's name, age, occupation and place of residence. During a deposition, a participant giving testimony may also be asked to describe events in detail or discuss how they acted in certain situations. An attorney may also ask a participant to provide his or her professional opinion of the case if serving as an expert witness. As with a trial, a party’s attorney can object to questions that opposing counsel asks during a deposition.

Participants

Although a divorcing couple will generally be deposed, other parties may be asked to provide deposition testimony as well. For example, if child custody matters are a central part of the divorce dispute, an expert witness, such as a child psychologist, may offer a deposition. Likewise, if the court has appointed the child a guardian ad litem (GAL) -- an advocate who supports a minor's interests and rights in court -- an attorney may choose to depose her as well. In cases where financial matters are in dispute, an accountant may provide expert testimony.