Can You Be Deposed in a No Fault Divorce?

By Kelly Mroz

A deposition is a formal procedure in which the parties to a divorce gather information from each other before a trial. In a no-fault divorce, there may be factual issues in dispute such as income, property, support or custody, even if the parties don't have to prove wrongdoing to get divorced. By getting relevant information out in the open, depositions help the parties reach a mutual settlement before trial, or at least can streamline the issues to be decided during the trial.

No-Fault Divorce

A no-fault divorce means that the parties can get divorced without proving someone was in the wrong. In a no-fault divorce, one party must allege that the marriage is irretrievably broken or that the parties have irreconcilable differences. All states now offer no-fault grounds, with some states allowing fault grounds in certain circumstances.

Uncontested Divorce

A no-fault divorce can be contested or uncontested. An uncontested divorce means both parties agree on all the issues. To be considered an uncontested divorce it is not enough that the parties agree to be divorced -- they must also agree on how to resolve the financial and custody issues. Most states offer an expedited process for parties seeking an uncontested divorce. A contested divorce is one in which the parties do not agree on all the issues. Laws vary by state, but typically allow contested no-fault divorce proceedings after the parties have lived apart for a specified period of time. In those cases, the spouse who wants the divorce can go to court to have the financial and custody matters resolved and the divorce entered.

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Deposition

A deposition is a discovery process authorized by the court to allow parties to obtain information and assess witnesses before trial. In a deposition, the parties and their attorneys sit down together, usually in an attorney's office. A stenographer or videographer is hired to record the proceeding. The person being deposed is asked questions by both attorneys. He must swear an oath to tell the truth, much like he would in a courtroom. The questions are usually limited to issues that are relevant to the matters that will be considered at trial. Attorneys can object to questions they deem improper.

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A deposition usually occurs in a no-fault divorce when the deposition is about discovering information related to contested issues. The procedure is not precluded just because the grounds for divorce are no-fault. In a no-fault divorce there is no reason to prove that one spouse acted to cause the end of the marriage, such as committing adultery. But depositions are more commonly conducted in no-fault divorces to sort out questions about income, delve into custody and support issues, or identify and value marital assets. If questioning is not relevant to contested issues, the attorneys can object during the deposition. This differs by state because even in a no-fault divorce, issues of marital fault may be relevant to certain issues, such as alimony rights or custody.

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Subpoenaing Witnesses for a Divorce Trial
 

References

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Income Discovery in Family Law Cases

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How to: Formal Request for Discovery in Family Law

It isn't likely you will pass through the straits of divorce without discovering something about your spouse's character and your own, but the legal term "discovery" refers to something more formal: the procedures available for getting questions answered in a lawsuit. Trust is one of the first casualties of a divorce, making information-gathering difficult; the discovery process fills that gap by requiring each party to provide true information under penalty of perjury, but only if the asking spouse follows state procedures.

Contested Divorces in California

While some couples agree on financial and child custody issues in divorce cases, other do not. Sometimes only one issue remains unresolved, sometimes many. Divorce actions in which the spouses cannot come to agreement on all issues are referred to as contested divorces in California and must be taken to trial for resolution by the family court judge.

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