Why a Deposition Can Make or Break a Divorce Case

The strengths and weaknesses of your divorce case may become obvious during the deposition stage of your litigation.

Your spouse’s deposition is when your attorney will have an opportunity to question your spouse directly under oath about any and all financial issues. The deposition is a powerful tool to gather evidence, forcing your spouse to make statements which may lead to a settlement agreement or be used during a trial in a contested divorce. Conversely, your own deposition may reveal the strengths and vulnerabilities of your position.

The outcome of a divorce case can be impacted by a well conducted or defended deposition.

What is a Deposition?

A deposition is a form of “discovery” that typically takes place in an attorney’s office. It involves sworn testimony of a party and is done prior to any trial. In New York State, the questions asked at a deposition are limited to financial issues. If you are being deposed, the opposing attorney asks you questions while your attorney is at your side. As you answer questions under oath, a court reporter records your testimony for a transcript of the proceeding. The information gathered and the statements made may be used by either party to prepare for trial, including cross-examination, or at trial.

What’s the Purpose of a Deposition?

A deposition allows each attorney the opportunity to ask the other party questions — to depose the other side — in order to bring out all the facts in a case, to lock down those facts in a transcript, and to determine the scope of the issues. These facts may be used to facilitate a settlement agreement or may be used in a contested divorce that goes to trial. Attorneys may also depose witnesses, such as accountants, employees of a business owned by a party or other persons who have knowledge of a party’s finances.

Since the purpose of a deposition is to compile evidence pertinent to the financial aspects of a divorce case, it may cover a broad range of issues including:

·      each party’s financial contribution to the marriage

·      a party’s employment and earning history and ability

·      a party’s claim for separate property

·      assets, including ownership of joint property and value of the property

·      liabilities

·      child support issues

·      spousal support

·      marital waste

·      cash flow

In addition to gathering facts to support a claim or defense, a deposition also aims to evaluate the opposition, including their demeanor and credibility; to obtain admissions and grounds for impeachment; to establish limits to a witness’s knowledge of a matter; and to discover facts not favorable to your case, so that your attorney can avoid surprises at trial and prepare a strong case. You can help your attorney by providing details and information to help her prepare for your spouse’s deposition, including the timeline of your marriage, your spouse’s employment history and any misrepresentations about finances he or she may have made. 

Rules of the Road When You Are Being Deposed

Your attorney will prepare you for your deposition so you be prepared. In general, it helps to keep these principles in mind:

·      Answer deposition questions honestly. This is crucial. If you don’t know the answer to the question being asked, simply say you do not know or do not remember. Respond as clearly as you can, in a straightforward, fact-based manner.

·      Refrain from providing unnecessary detail. Less is more when you are questioned. Avoid elaborating or adding details and opinions, as you may unwittingly sabotage yourself by offering information that may be used against you. Avoid guessing and using subjective words such as “feel” or “think” or “believe.” Listen carefully to the question and only answer the question asked. If you can limit your answers to a simple yes or no that is best!

·      Take your time. There is no rush to provide an answer, you can take the time to think. If you do not understand the question, say so. If you did not hear the question, ask it to be repeated. If your attorney objects to the question, wait for direction before answering.

What if I misstate something at the deposition? Don’t worry. After your attorney receives the transcript of your deposition, you will have an opportunity to make corrections to your testimony in a document called an Errata. She will help you understand what corrections are permitted.

Deposition Success Starts with a Great Attorney

With so much at stake in a divorce case, your attorney’s excellent deposition skills can make all the difference.

As an attorney skilled in all aspects of New York divorce and family law, Faith works closely with her clients throughout the divorce proceedings to a successful resolution. Faith is also a certified financial litigator (CFL) and has represented children (as an attorney for the child) throughout her career. Contact Faith today for a consultation.