5 Key Questions to Ask in a Divorce Deposition
Many divorce lawyers conduct depositions of opposing parties to discover important information prior to trial. A deposition is a sworn statement taken out-of-court before a court reporter. If desired, a transcript of the testimony can be prepared and used later at the trial to impeach or discredit the opposing party if their statements vary from the time they originally gave the deposition.
Any contested divorce may present one, or two, and sometimes 3, major points of contention, such as child custody and support, spousal support or what is known as maintenance, and division of marital assets. A deposition is an excellent opportunity to obtain a preview of what to expect from the opposing party before the case makes it to trial.
Good divorce lawyers worth their salt will take advantage of scheduling a deposition of the opposing party for these very reasons. Depending on what major contentions are included in a divorce, there are 5 key questions to ask in a divorce deposition. A brief description of each of these key questions follows.
1. Parenting Skills?
If a divorce action involves contested custody of minor children, one key question to ask of the opposing party is to describe what good parenting skills my client possesses. This often takes the opposing party off-guard; why, they may wonder am I asking them to say something nice about my client? This is, after all, a divorce. Keep in mind, that at a deposition of the opposing party, my client has the right to be present, and normally is, sitting right next to me. This makes it even harder for the opposing party to say something unpleasant when my client is sitting directly across from them at the table. You’d be surprised at how often the other party says nice things about my client. Once these answers are given however, they become part of the recorded transcript and can be brought up at the trial when the issue of who is the better parent is determined.
2. Support System?
A second key question to ask when child custody is involved in a divorce is to inquire about the support group the opposing party has available locally to assist with care and maintenance of the children. When married, the parties had each other to step in if a need arose. Maybe one of the children gets sick at school and needs a ride home or to the babysitter. In the absence of the now departed spouse, who can the opposing party rely on to fill this role. The larger the support group, the better.
3. Non-Marital Property?
If martial property division is a major issue, most divorce lawyers consider a third key question essential to their case. That is: what does the opposing party believe to be his or her non-marital property. Normally, divorce estates are divided 50/50 with half the total amount of property going to each party. Non-marital property, such as an inheritance received before or during the marriage remains the separate property of the party who can prove that it came from a non-marital source. Therefore, it is important to ask the opposing party if he or she believes certain property is non-marital, and if so, to list what proof they have to establish it as non-marital.
4. Timeline?
A fourth key question divorce lawyers ask related to property issues is when does the opposing party consider the marriage to have broken down, and whether they wasted or misapplied marital assets knowing that the marriage was more than likely to end in divorce. This concept is known as dissipation. Dissipation is the wasting or misapplication of marital assets that occurs at or soon after the virtual breakdown of the marriage. If it can be proved that the opposing party dissipated assets at this relevant time, he or she will be required to reimburse the marital estate for the value of the property that was misappropriated.
5. Finance Discrepancy?
A fifth and final key question related to payment of child support or spousal maintenance (what used to be called alimony) can be asked of an opposing party who is self-employed, or who is part owner of a small corporation, sometimes closely, or entirely family owned. Prior to the deposition, I will have reviewed the opposing party’s tax returns, paychecks, and bank and investment accounts. If the opposing party is living high off the hog while reporting meager income on tax returns, I ask them how are they able to square the discrepancy between the two.
In high dollar cases, I may even employ a forensic accountant to audit the source of the opposing party’s income, as well as how and where it is spent. Even though parties to a divorce are required to disclose under oath the amount and whereabouts of assets acquired during the marriage, good divorce lawyers know that people will go to great lengths to keep their soon to be divorced spouse from sharing in the wealth that was created during the marriage. If an opposing party is not able to explain why there is a substantial discrepancy between their life style and their reported income, further exploration into their financials is required.
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A special thanks to our friend and blog author, Edgar Weer of Smith & Weer, P.C., for his insight into taking a strong deposition during a divorce case.
