Divorce & Child Custody Depositions: Fundamentals

by Chicago Divorce Reporter

If you are presently involved in a Chicago or Illinois divorce or child custody dispute, you need to know certain basic facts about depositions.

If you are going to be deposed as part of an Illinois child custody or divorce case, you may want to consult a Chicago divorce lawyer who can appropriately counsel you and help you understand exactly what your deposition might entail.

  • Deposition definition: Let’s not get technical here. You probably know what a deposition is from watching legal-themed TV shows like Boston Legal, Shark, or (with apologies to Perry Mason) the show that set the standard in legal dramas – LA Law. In a deposition, a lawyer asks questions of one of the parties or witnesses. A person may always a agree to be deposed. However, normally, a subpoena is issued; a subpoena is court order directing someone to do something, or to appear somewhere. A subpoena may direct you to appear at a deposition.
  • The purpose of a divorce/child custody deposition: There may be numerous objectives to conducting a deposition.
    1. Lock in testimony : In Chicago and Illinois divorce and child custody cases, it is very common for one party to make false allegations of abuse. Surprise alert: People lie all the time in Chicago divorce and child custody cases- and benefit from it! Therefore, if a party is deposed early on in a case, and claims there was no abuse, any later claims will not have much credibility. By deposing another party (who is referred to as deponent) or witness, the party deposing the deponent can gain some insurance against the deponent changing his or her story. Also, a deposition can be taken to preserve testimony; for instance, if a deponent might become unavailable for live, in-court testimony (because he is a soldier being shipped to Afghanistan or because she is dying of a terminal disease), an “evidence deposition” can be taken and used like live testimony in court.
    2. Preventing surprise: If your Illinois divorce or child custody case goes to trial, your Chicago divorce lawyer will not want to be surprised about what a witness says on the stand. A deposition helps an Chicago divorce attorney prepare for trial. For instance, when a Chicago divorce lawyer is cross examining a witness in a child custody or divorce case, he or she should strive to live by the motto “Never ask a question to which you don’t already know the answer.” Bottom line: Depositions help prevent testimony surprises at trial.
    3. Discovery: A deposition can be a discovery tool. By deposing the other party in a Chicago
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      divorce or child custody case, parties can uncover other evidence. For instance, if in a deposition a wife accidentally admits she bought her extra-marital lover a gold nugget ring, the husband can investigate that purchase in an effort to show the wife dissipated marital assets.

  • How much does a Chicago divorce or child custody deposition cost?: You will have to pay for your lawyer’s time, and for a “court reporter” to record to deposition and to transcribe it. A court reporter will cost several hundred dollars. Your lawyer will likely be charging you upwards of $200 per hour, and even more than $500 at some of the top Chicago divorce law firms. The actually deposition might take several hours. However, your lawyer will need to prepare for the deposition for several hours. Long story short, a deposition will end up costing more than one thousand dollars, and most likely, will cost several thousand. Do you want to save money? Fantastic! Do you want to do so by not having a deposition when your case could go to trial where the other party could make up lies that your Chicago divorce lawyer is not prepared to refute? Ouch! You should probably eat beans instead of steak for the next year rather than expose yourself to a Chicago divorce or child custody nightmare.
  • What should I do if I’m going to be deposed?: You may receive a subpoena directing you to appear at a deposition. Consider the following:
    1. Your will be recorded at the deposition: You may be sitting across from your former lover, feeling a level of hatred you’re rarely experienced. You may think that person is ruining your life! It’s unfair! You want to give them a piece of your mind, and tell him or her they aren’t worth the grime on the bottom of your shoe! Don’t! You do not want to say anything you would not want a judge to hear.
    2. The opposing attorney will try to size you up: Shhhh. . . . . don’t tell anyone . . . Chicago divorce lawyers have big egos. They believe they are amateur shrinks – able to size someone up in a deposition – to know how a person will react on the stand. But you, armed with this information, could potentially lead the opposing lawyer to an erroneous conclusion. A deponent can appear like a liar in a deposition, then appear credible on the stand.
    3. Prepare. Prepare. Prepare: Your Chicago divorce lawyer should prepare you by explaining what types of questions the opposing attorney might ask. But, you attorney cannot tell you what to say . . . there is a difference.
  • How does a deposition happen? A person may willingly be deposed, but most often a person will be subpoenaed, and thereby ordered, to attend a deposition. An attorney may subpoena a witness (including the other party), but a subpoena can be quashed (nullified). If a party is pro se (representing him or herself), then that party could ask a judge for a subpoena. However, if the pro se party is not an attorney, it is highly unlikely the deposition will be as productive as it should be.
  • Who may be deposed? Parties and witnesses may be deposed. However, a deponent’s attorney may be able to quash a subpoena to be deposed – meaning at attorney could stop his or her client from being deposed. Doing such would requiring the filing of a motion to quash.
  • What type of questions may be asked at a deposition? Any quesitons may be asked at a deposition. Though the deponent’s attorney may object to various question, the deponent must still answer. The judge will later decide if the objection should be sustained and the deponent’s answer stricken from the record. If a deponent refuses to answer a question, then the deposing attorney may ask the judge to order the deponent to answer the question. If the judge so orders, and the deponent still refuses, the deponent may be held in contempt of court. You might want to view The Illinois Family Law Gazette’s post titled “Making a Most of a Deposition of the Other Party.

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