This article will explain how and why third-party witnesses may be required to appear for divorce depositions. If you have additional questions about divorce depositions after reading this article, you should consult a local family law attorney.
How A Third-Party Witness Gets Involved in a Divorce
Divorcing spouses and their attorneys can get information from third-party witnesses in a number of ways.
Attorneys may reach out and speak with a witness directly. For example, if the witness is the wife's friend, the wife’s attorney may choose to speak to the witness directly, to gather information without tipping off the husband or his attorney. A witness can choose whether or not to speak to an attorney, or a witness could choose to speak to one side, but not the other.
Another way a witness may get involved in a divorce case is by signing an "affidavit," which is a written document that contains sworn testimony and is signed before a notary public. An affidavit typically includes statements about issues relevant to the court case. When a witness has limited information, an affidavit may provide all the information needed from that person.
When a witness has a lot of information, or very important information relevant to the divorce, one or both attorneys may want to depose that witness. For example, in a custody battle, nannies and babysitters are likely to have plenty of information about each spouse’s parenting abilities and involvement in the children’s lives. If the divorcing couple is dividing a business, a business partner will likely have detailed information about the company's value and its profit and loss statements. As you might guess, attorneys will regularly depose mistresses or paramours, especially in states where adultery is a ground for divorce or plays a role in determining alimony or property division.
What to Expect From a Deposition
To take a divorce deposition, an attorney must serve the witness with a deposition subpoena. The witness can either willingly accept the subpoena, or the attorney can have a law enforcement officer or court-approved process server deliver it. Depending on your state’s rules, attorneys may serve a subpoena by registered or certified mail. The attorney may also serve a “subpoena duces tecum,” which requires the witness to bring requested documents to a deposition.
The subpoena will state the date, time, and location of the deposition: They usually take place in the deposing attorney's office. A court reporter will be present to record everything the witness says, either by stenograph, audiotape, videotape, or some combination. Both spouses and their attorneys may be present. The attorney who scheduled the deposition will ask questions that the witness must answer under oath: The other attorney can also ask questions.
Witnesses have the right to be represented by an attorney at a deposition. For example, a witness who may be asked questions protected by doctor-patient privilege, or a witness who may be asked about illegal drug use should have an attorney present to advise whether to answer certain questions. In general, however, attorneys have wide latitude to ask questions at a deposition. Since there’s no judge to decide whether certain questions are improper, attorneys don’t have the same ability to object to questioning as they do in court. Unless an attorney instructs a witness not to answer, witnesses must answer questions truthfully—even about personal matters.
Depending on your jurisdiction, there may be limits to how long a deposition can last. For example, in a Georgia divorce, the deposition may take no longer than seven hours, unless the court grants an extension.
General Deposition Advice
If you've received a subpoena to testify at a deposition, it's a good idea to speak to an attorney, who can best advise you how to prepare for the deposition. Still, there are some general tips to keep in mind if you're being deposed.
First, as should be obvious, you must tell the truth. If you're questioned about illegal behavior, an attorney can advise you whether or not to answer, but you should never give a false answer. Since you're under oath, knowingly giving a false answer may amount to perjury and subject you to penalties or sanctions, possibly including jail time.
Don’t guess at questions if you don’t know or can't remember the answer. It can be hard to take an answer back by claiming later that you weren’t sure. Answer questions verbally rather than nodding or shaking your head, or using “mm-hmm” responses that could be misinterpreted on a transcript. Similarly, it’s best to avoid sarcasm, as such statements are easily misunderstood in writing.
If you have additional questions about testifying at a deposition in a divorce case, contact a local divorce attorney for advice.