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What Is a Deposition and Is It Really Necessary?

David’s Divorce Dictionary:D is for Deposition

Definition: a deposition is a legal procedure conducted at the office of the opposing attorney where the client is asked a series of questions, under pains and penalties of perjury, for an indefinite time period; and is attended by the client’s attorney, the client’s spouse, and a court stenographer (who transcribes the entire proceeding).

On an emotional level, a deposition is a lot of things:

  • Nerve-wracking
  • Intimidating
  • Confusing
  • Aggravating
  • Wasteful (of time & money)
  • Fortifying
  • Liberating
  • Validating
  • Some of all of the above

Depositions happen only in litigated cases – they are not part of a mediation or collaborative case. They may be the product of a failure to settle a case or they may be a linchpin to settling a case. In other words, they can be a threat which motivates a client to settle (for fear of having something exposed at deposition, or for fear of the expense and emotional toll); or they can be an opportunity for a client to bring out the truth on the record, to clear up misinformation and dispel suspicion, which then motivates the opposing spouse to settle.

As with nearly everything in the world of divorce, what a deposition may mean to a particular case is subject to the qualifier– it depends.

In our practice, we do not rush to take depositions. When our clients are presented with a notice of deposition, we try to convince the other side to hold off. The primary reason is that depositions, though sometimes necessary to develop critical information, are often a very expensive and a waste of time and energy. Good attorneys, who have the best interest of their clients at the fore, can often obtain the information they need to advise their clients without conducting depositions. Remember, almost every divorce case ends in a settlement, not a trial. Depositions generally are more important for trial preparation than for settlement.

There are times, however, when I will highly recommend that my client consent to my taking a deposition of the other spouse or an important witness. One example is when the other spouse is self-employed, and we suspect that income from the business is being hidden in trumped-up business expenses. It may be crucial to expose that additional income – so that adequate support can be obtained. A deposition may be the best vehicle for uncovering the truth about a business’s bottom line. And, facing the risk of exposure of tax fraud at a deposition, the opposing spouse may decide, usually at the last minute, to offer an increase in the amount of support he or she is willing to pay.

What’s the Takeaway? Depositions can be a powerful tool or a dangerous weapon in a litigated divorce. An attorney’s skill in avoiding depositions, however, can be just as important as skill in taking them.

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