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FAQ: Depositions for divorce and child custody

If you are involved in a divorce in Illinois, you might wonder, “What is a deposition?” Long story short, it’s an interview of a party or witness that can be used in court. But as a divorce lawyer in Illinois, I know that people actually have many more questions about depositions. That’s why I wrote this FAQ about depositions in a divorce in Illinois.

What is the purpose of a deposition?

At it’s essence, the purpose of a deposition is to gather evidence that can lead to other evidence, to prepare for a hearing or trial, or to show someone is a liar.

In terms of preparing for a hearing or trial, lawyers like depositions because it helps them prepare questions for witnesses. It’s sometimes hard for a lawyer to question a witness when the lawyer has no idea what the witness is going to say.

Illinois Supreme Court Rule 202 governs the purpose of depositions and 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.”

When a deposition is used for discovery, that means it is used to find out information and can be used to show that the person who was deposed – the deponent – lied during the deposition, or in court. When a deposition is used as evidence in court, the entire deposition is entered into evidence as if a person testified in court exactly the words stated in the deposition.

Where can a deposition be taken?

Most often deposition are taken in a lawyer’s office.

If the person being deposed (the “deponent”) lives in a county other than the one in which the case was filed, the deposition may be in the county where the deponent lives. Otherwise, it will likely be in the county where the case was filed.

Illinois Supreme Court Rule 203 states the following:

Unless otherwise agreed, depositions shall be taken in the county in which the deponent resides or is employed or transacts business in person, or, in the case of a plaintiff-deponent, in the county in which the action is pending. However, the court, in its discretion, may order a party or a person who is currently an officer, director, or employee of a party to appear at a designated place in this State or elsewhere for the purpose of having the deposition taken. The order designating the place of a deposition may impose any terms and conditions that are just, including payment of reasonable expenses.

How can I prepare for a deposition?

If you are getting deposed, you need a lawyer.

A lawyer can help you prepare for a deposition by giving you an idea of what questions the lawyer may ask in the deposition. And while a lawyer cannot tell a person what to say, it is possible for a lawyer to give feedback regarding the answers you’d like to give.

I noticed the my articles on divorce and child custody deposition are very popular. I can only imagine that’s because some people are getting deposed without being properly informed by their own lawyers. If that’s the case, you probably need a new lawyer.

One service I offer is to conduct mock deposition for people who have other lawyers. If you would like practice in a deposition, or generally being examined by an attorney, feel free to contact me to set something up.

What will happen during a deposition?

A deposition will likely occur in a meeting room with about 4-5 people in it –  the lawyers, the parties, and the court reporter.

Before a person is deposed, they will be sworn in. Then, most likely, the lawyer who will conduct the deposition will make certain introductory statements. For example, the lawyer will state the name of the case, the date and time, who is in the room, who the deponent is, and so forth.

Then the questions will begin. Obviously the nature and subject of the questions depend upon what is at issue in the case. If the case is about financial issues, the questions will be about money and accounting. If the deposition is about kids, the questions will be about the children’s lives, parenting, the family’s habits, problems that occurred, and so forth.

How much does a deposition cost?

Depositions can be expensive. Here’s why. Not only are two lawyers needed (one for each side), but a court reporter is also needed (they record and transcribe the deposition).

In regards to a court reporter, one or both parties will have to not only pay for the court reporter’s time, but also will need to pay for a transcript if one is needed. Normally a transcript is needed – otherwise a deposition is pretty much pointless. A court reporter will charge perhaps $500 or more for a 3-hour deposition, and the transcript of a 3-hour deposition might cost $400.

In any type of litigation parties must weight the cost and benefit of taking any certain action. However, if a lot is on the line, a deposition can be a relatively small price to pay.

When will a deposition happen?

Normally, depositions happen when there has already been significant evidence gathered in a case. For example, in a divorce, perhaps financial records have been exchanged. If child custody is an issues, the parties might have already gathered evidence pertaining to the children, such as medical records or school records.

More specifically, a deposition will happen on the date recorded on the Notice of Deposition served to the deponent. For example a Notice of Deposition might stated Joe Smith is to be deposed at 123 Many Street in Anytown, USA on October 1, 2014.

The deposition can often be rescheduled if the deponent or a deponent’s lawyer has a conflict with the date of the deposition.

Are depositions always needed?

No, depositions are not needed in every case. Sometimes a case is so small and the issues are so simple that a deposition is unnecessary. It really depends upon the specific facts of the case an the lawyer’s preference – some lawyers are more comfortable than others in going to hearing or trial without a deposition.

It seems that sometimes lawyers schedule and conduct depositions even when they are not needed. I hate doing that because I prefer to make more conservative use of my client’s resources.

If you wonder why you do or don’t need a deposition, you should talk to your lawyer.

 

About the author: Contact Illinois family law attorney David Wolkowitz at 312-554-5433 or online. He is a family law and divorce attorney serving Chicago and the Counties of Cook, Champaign, DuPage, Kane, Kendall, Lake, McHenry, and Will. Areas of practice include divorce, uncontested divorce, child custody, visitation, spousal maintenance, child support, and the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”).