Divorce and Depositions

Divorce and Depositions

Legal: What Can You Expect When Your Spouse’s Attorney Deposes You

Taking on a divorce can be one of the biggest and most stressful events of a person’s life. Often adding to that stress, when applicable, is the deposition. Unless you know of an individual who has had to give one, or you have been a deposed in the past, you most likely aren’t familiar with the process. As with nearly everything in life, the better you understand the deposition process, and the more you prepare for it, the less intimidating it will be.

A deposition is simply a discovery technique. When you get into a divorce setting there is often a lot of information you can’t get through answers to interrogatories or requests for copies of documents or requests for admission, which are other discovery tools. This additional information may be useful for settlement or at trial,” attorney Fred Zundel of Idaho Legal Aid Services said.

According to Zundel, the deposition provides a means to obtain sworn testimony from the other party or other potential witnesses. You tend to see depositions in somewhat complex cases where people have some money to bankroll them,” Zundel said. It can be an effective discovery tool.”

New Jersey-based family law attorney Mark S. Guralnick said a deposition can cost anywhere from $300 to $700 depending on the length of the statement. The expense depends heavily on how much both your attorney and the stenographer charge for participating in the deposition. Of course, you are paying for your lawyer’s time to sit there, his time for preparing for the deposition, reading the deposition and the court reporter’s time,” Guralnick said.

According to Heidi Culbertson, director of client development at The Harris Law Firm in Denver, Colo., each side of the divorce party has the right to take depositions of the parties related to the lawsuit and witnesses. While the thought of giving sworn testimony tends to put some people on edge, Culbertson said there is nothing to fear when both parties are committed to telling the truth. In general, depositions occur at the office of one of the involved attorney’s, Culbertson said.

WHY DEPOSITIONS ARE NEEDED

Each case presents a peculiar portrait of the kinds of questions you want answered,” Guralnick said. “These questions can revolve around income, money that has been relocated, name changes on accounts, and other desires of the opposing party. In any divorce case, one thing that a lawyer and a client need to decide in the beginning is how much you need to know about the other side.”

Of course, depositions are not always a necessity, as Guralnick is quick to point out. Some of these cases are small and easy and don’t need depositions at all.

WHO GETS DEPOSED?

According to Guralnick, anyone associated with the case can be called in for a deposition. This includes, but is not limited to, the parting spouses, co-workers, friends, teachers, and counselors. “The attorney and client decide whom they want to depose based on the critical issues of the case. That is something just you and your attorney need to discuss,” he said.

The deposition process may seem cut and dry, but Guralnick said it is critical to prepare prior to giving a statement. Make sure, be absolutely aggressive about it, that your lawyer meets with you, prepares you, prior to the deposition,” he said. Insist he meet you ahead of time and allocate a significant amount of time.”

A common mistake divorce clients tend to make is offering information they weren’t asked about during a deposition. Using the analogy of time, Guralnick explains that when he asks a client if they are wearing a watch, almost always the individual pulls out their watch and tells him the time. Guralnick points out, I didn’t ask what time it was “¦ Don’t volunteer information. It takes time to train yourself. It’s the nature of our existence.”

Outside of preparing with your attorney, Zundel said, there are books written specifically on how to prepare and give depositions. These publications can also serve as a resource for deposition research.

Lastly, Guralnick said he recommends his clients review the discovery documents previously submitted in the divorce case, such as interrogatories. It is important to examine these items and familiarize yourself with how you have answered questions under oath in the past. This helps to maintain consistency with the answers provided during the deposition.

OTHER TYPES OF DISCOVERY

Depositions are not always used to discover facts about the other party. A lot of the information attorneys need to decide a case can be discovered without the use of a deposition,” Zundel said. “When you have a contested custody case, the judges in our area tend to order custody evaluations. The evaluator will look at any and everything regarding custody that the parties ask the evaluator to look into, and this practically eliminates any need for a deposition on the issue of custody.”

“Along with a custody evaluation,” Guralnick said, “there are several other means for obtaining information from the other side – interrogatories, request for document production, and request for admissions. By definition, interrogatory translates very simply into asking a question. Essentially, the opposing counsel and client compile a list of questions to be answered in written form and under oath by the opposite party. A request for production of documents is similar to interrogatories. (It’s) more or less a set of interrogatories but this time they are asking you to produce something. That something could be a document such as tax returns or other financial record. It’s amazing what you can learn from a person’s tax returns.”

“Lastly, a request for admissions can be utilized to obtain information from the opposing party. The request is a compilation of statements to be either confirmed or denied,” Guralnick said. “This tactic can be used effectively by carefully crafting questions around a topic in the divorce the attorney wishes to learn more about.”

“With so many other ways to achieve pre-trial discovery, one may wonder why a deposition is needed at all. Both Zundel and Guralnick maintain the importance of the deposition process. Depositions are most often used for complex issues, for example, the valuation of property. I think that depositions can be very valuable,” Zundel said.

“This is a very valuable technique because at the deposition there is no one there to help you make up the answers. You’ve got to answer on the spot,” Guralnick said. “Now when they ask you questions, the stenographer is writing down every question and answer.”

Casey Clark Ney is a freelance journalist based in Boise, Idaho. She holds a B.A. in Communication and has more than six years experience in newspaper and magazine writing. Her Web site can be viewed at www.CaseyClarkNey.com. E-mail correspondences can be sent to caseyclarkney@earthlink.net.

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