Depositions & Divorce

Depositions are an important tool in the discovery process during divorce.  That said, depositions are not a part of all divorces or even all litigated divorces in Connecticut.

Read on to learn more about depositions and divorce.

What Is Discovery?

Discovery is the exchange of legal information and known facts of a case. Think of discovery as sharing background information and evidence so that both spouses can make informed decisions.  For example, imagine negotiating a settlement agreement on property division without knowing all the property owned by both spouses.  Or, imagine deciding to move forward to trial without knowing how the business appraiser will testify.  That’s why discovery is so important. Discovery is traditionally a part of the litigation process.  However, information sharing, including the exchange of financial affidavits at a minimum, is also an important component of mediations and collaborative divorces. Depositions are only one of the discovery options available in a litigated divorce, and are rarely the starting point. Read: Discovery in Connecticut Divorces

What Divorce Discovery Options Are Available Besides Depositions?

Many divorces start with the financial affidavit and a “Request for Production.”  The Request for Production requests particular documents, statements, photos, or general information from the other party for a given period of time. In Connecticut divorces, Connecticut Practice Book §25-32 provides for “mandatory discovery disclosures.”  In many cases, those are the documents requested in the Request for Production.  Generally speaking, Mandatory Discovery documents provide “backup” for the information contained on the financial affidavit. In more complex, high conflict, or high net worth divorces, Requests for Production seek Mandatory Disclosure documents plus additional items tailored to your case. Discovery techniques beyond the Financial Affidavit and Request for Production may also take place.  In addition to Depositions, this could include Interrogatories or Requests for Admission.  When a spouse has an ownership interest in a business, which is the case in many high net worth divorces, there may be a business valuation completed. Read:How Do I Protect My Privacy During Divorce?

What Are Depositions?

A Deposition is when a person is asked various questions under oath.  In a divorce, this person could be you, your spouse, or a third party.  The questions and answers are recorded word for word by a stenographer.  The stenographer then creates a transcript of the proceedings.  Sometimes, Depositions are also videoed.

Depositions generally occur in a conference room at an attorney’s office.  The public is not in attendance, but the Deposition is open to both spouses and their divorce attorneys.

Will I Be Deposed in My Divorce?

In Connecticut divorces, both spouses have the right to depose their spouse under Connecticut General Statutes Sections 52-148a through 152 and Connecticut Practice Book Sections 13-26 and 13-331.

That said, in most divorces, spouses are not deposed.

The idea of a Deposition can create a lot of anxiety.  Don’t worry — when there is a Deposition, we prepare our clients so that they are ready and have a good sense of what to expect.

What Should I Expect During a Deposition?

All Depositions are slightly different, but there are some commonalities that can be helpful to know.

• Seating.  First, often the stenographer will sit centrally or at the head of the table so that he or she is in the best possible position to hear the questions and answers.  The attorney who noticed the Deposition will tell everyone else where to sit, sometimes in conjunction with the stenographer.  Commonly, the person who is testifying (also called the “witness”) will sit directly to one side of the stenographer.  The attorney who noticed the Deposition and who is asking the initial questions will sit on the oppisite side of the stenographer.  If the table is a square or a rectangle, this will be directly across from the witness.  The witnesses’ attorney will be next to the witness.
• Oath.  Next, the stenographer swears in the witness, so that he or she is under oath to tell the truth and the whole truth, and nothing but the truth.
• Ground Rules.  The attorney who noticed the Deposition will go through the ground rules of the deposition.
• Questioning.  The attorney who noticed the deposition asks questions and the witness answers those questons.
• Objections.  The witness’s attorney may object to certain questions.  Because the judge is not in attendance at the deposition, those objections are not addressed right away.  They are “preserved” for the future.
• Length.  Some depositions are completed in under an hour, others take more than a day.  Your attorney can give you a better sense of what to expect.
• Follow-up Questions.  After the attorney taking the Deposition concludes her questioning, the witness’s attorney has the opportunity to ask questions.  They may or may not do so.  Even if they do, there are generally fewer questions.
• Breaks.  Witnesses are allowed to ask for and take breaks during their Deposition.
• Witness Communication with Attorney.  The witness cannot consult with his or her attorney while there is a question pending.  This includes during breaks.
• Read and Review.  If the lawyers agree in advance, many times the witness will have the opportunity to “read and review” the transcript for errors before it is finalized.

When Are There Depositions in a Divorce?

Some of the main reasons to conduct Depositions in a divorce case include:

• Narrow Issues.  Sometimes we take a Deposition to narrow down the outstanding issues in order to facilitate a full resolution of your divorce via negotiation and settlement outside of court.
• Preserve Testimony.  In other cases, a Deposition is taken to “preserve” a witness’ testimony in the event that the witness won’t be available for trial.  For example, this may be because of health concerns, or if the witness lives outside Connecticut or internationally.  The deposition transcript can then be used as evidence if your divorce does not resolve outside of court and there is a trial in the future.
• Understand Background.  Another common reason for a Deposition is to help understand the important background to a case that wasn’t made clear via written discovery techniques like Requests for Production or Interrogatories.  For example, complicated compensation structures may be clarified in a Deposition.  This can be used for both settlement purposes and to prepare for trial.
• Verify or Attack Witness Credibility.  Finally, Depositions create a record taken under oath for use at trial.  That means that if a witness contradicts his or her Deposition testimony during trial, the attorney can address inconsistencies, suss out falsehoods, and potentially attack the witness’s credibility.

Next Steps

Our first step at Freed Marcroft, the Goals & Planning Conference, is designed to get to the heart of your problem and unveil your true goals.  Then, we take those goals along with the facts of your case and analyze them so that our divorce attorneys can present you with recommendations and options on how to move forward.