What is a deposition

What is a Deposition in a Divorce?

When I asked this question to a couple of my friends and even family members only one person was able to answer what is a deposition.  A deposition is an interview of a party or a witness that can be used in court. The parties to the case sit down in a room with their attorneys, and each attorney can ask the opposing party questions and/or witnesses who may have information regarding the case.

Illinois Supreme Court Rule 202, is the rule that governs the purpose of depositions.  The rule states that “Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.”  Simply speaking, a deposition is a testimony that is taken out of the courtroom, there is no judge or jury present, only a court reporter who will record and transcribe the deposition. A person who is deposed is still sworn in (under oath) just like they would be in court.  Depositions are usually held in a conference room, in a lawyer’s office, in the county in which the person who is being deposed resides or is employed, or if it is the plaintiff who is getting deposed, then in the county in which the case is pending. (Illinois Supreme Court Rule 203).  

What is a Deposition in a Divorce Action?

In Illinois, depositions can either be for retrieving information from the opposing party or a witness, which is mainly called a discovery deposition, or to obtain evidence from the opposing party or witness; which is called an evidence deposition.  In divorce actions, attorneys use divorce depositions as an informal way to get information from the opposing party after each side has exchanged financial records and other records and information regarding the other spouse. If a spouse has not turned over all of the records that the opposing party is asking for during the discovery phase of the divorce, or if the information obtained during discovery leads to the opposing party wanting to elicit more information, then a deposition may be appropriate.  

Lawyers use a deposition in a divorce as a tool to ask the opposing party or witness questions regarding their submitted records or lack thereof under oath, and the lawyer doesn’t have to wait until the trial or a hearing to ask the person questions.   

What is the Benefit of A Deposition in a Divorce?

Some people may only think that a deposition is only used in tort litigation, but depositions are frequently used in a divorce action.  To help better understand the benefits of a deposition, let me give you a scenario; both parties exchange their financial records and account statements, but my client has reason to believe that the other spouse is hiding some of his assets and not being forthcoming during the discovery process.  So instead of waiting until trial to ask the opposing spouse questions relating to his financial assets, my client decides to have a deposition in order to ask those important questions not only relating to the case but to the other spouse’s financial assets, while the other spouse is under oath.

All of the spouse’s answers given during the deposition are recorded and they are bound to their answers. Those answers to my questions during the deposition can be used against that spouse who answered the question in court to discredit the spouse if their answer to the same question given in court is different.   This is a good way for my client to get the answers they need and for me to try and facilitate a divorce agreement. or prepare for trial in the case there is no agreement.

Depositions can be very beneficial to the client and for their lawyer who is negotiating a divorce settlement on their behalf, the downside is that depositions can be costly and time-consuming, depending on the number of people being deposed.  Before you suggest having a deposition, first consult a lawyer who can help navigate you through the process. Contact Anderson and Boback today for a confidential consultation to learn more about divorce deposition.

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