Deposition Imposition; What is a Deposition?

Depositions are routinely taken in lawsuits, and are common in family law cases.  A deposition is a part of the “discovery” process where the parties or a witness are asked questions, under oath, outside of Court, so that the attorney will know what they will say when in Court.  You have heard the old maxim that an attorney should never ask a question that he doesn’t know the answer to, well the deposition is the mechanism where you can ask that question.  A wide variety of questions may be asked in the depositions even those that likely would not be relevant in Court.

Depositions are usually at the attorney’s office. The attorneys, the parties and a Court reporter are typically the only persons in attendance.  Depositions are transcribed and may be videotaped.

Questions about the witnesses education, work, finances and efforts with regards to the children are all fair game.  The dirty details of fault are also fair game. Naming names and being specific are part of the process too.  Depositions are a tool to gain information as well as pin witnesses or parties down on what their “story” is so that it does not “change” later.

I had an instance where I took the father’s deposition in a custody modification case. Both parties had remarried.  Step-parents always have a bull’s eye on their backs in custody modification cases. I made sure and asked the father several times and different ways if he had any issues with step-dad.  The answer was “No.”  Well, it took several months to get to trial. At trial the father tried to change his tune.  He attempted to say he had serious issues with step-dad and had for as long as he had been in the picture. I asked the father if recalled his deposition. He stuttered. I showed him the specific page and questions asked. He said he must have forgotten about the serious issues at the time of the deposition. Right.  He backed off on his assertions and the deposition “saved” the day.

Objections are rare in family law depositions, or at least less common than in trial.  They are typically limited to the “form of the question,” being made to preserve the right to object in the future, but the deponent usually still answers the question.  Questions regarding crimes, however, can be objected to and those are usually not answered – with the deponent pleading the 5th.  The 5th Amendment to the U.S. Constitution gives all persons the right to not incriminate themselves.  How does this come into play in family law? Adultery is a crime in Mississippi (blogged previously).

The bottom line in depositions is, while they are nerve wracking for the deponent, ultimately you are just answering questions and your job is to tell the truth and rely on your attorney.

Thompson Law Firm, PLLC     (601) 850-8000      Matthew@wmtlawfirm.com

Financially Ever-After; Assets and Lies

Financial issues abound in almost every divorce action.  The parties fight over the money, the debt, the house, the business and anything else of value.  The financial consequences of divorce can not be overstated.  It typically results in a change in lifestyle for both parties, and despite the law that contemplates “maintaining the lifestyle of which you have grown accustomed,” divorce frequently results in both parties living a reduced lifestyle. It takes more money to run two households than it does one.

Mississippi Courts use a form for financial disclosures. This form is called an “Eight-oh-Five,” as it is Rule 8.05 (clickable) which requires the completion and use of a financial statement in family law cases.  The 8.05 must list all income, assets, expenses and liabilities.  Whether they be “joint” or solely owned by one party, they have to be disclosed.  The 8.05 also must include a recent pay stub, work history and the most recent tax return.  These are to be completed under oath and are subject to perjury safeguards.

Persons who have submitted materially false 8.05s have been held accountable by the Court, even well after the fact.  In a recent, notable case the husband, who also had a girlfriend, won the lottery about 2 months before the divorce. He did not disclose the winnings and it was an out of state lottery so the wife did not hear about it.  The parties were divorced.  About 4 years later, the now ex-husband’s girlfriend called the ex-wife to let her know that the husband had won the lottery just prior to the divorce. Why?  Well, the girlfriend found out that the fellow was now cheating on her.  The ex-wife filed a petition to re-open the matter due to fraud.  The husband’s failure to disclose was found to be “fraud on the Court” and the case was re-opened. The wife was awarded a portion of the winnings and attorney fees.

Moral of the story; disclose your assets and be honest. The Court requires full disclosure.

Thompson Law Firm, PLLC      (601) 850-8000

Matthew@bowtielawyer.ms

 

Voting & Mississippi -(a very brief history)

With the election one day away, this is the (obligatory) “be sure you vote” blawg.

Tuesday we go to the polls to elect State and National officials.  You get to vote for the person you think should be President, and a MS Senator, (if in your district) Congressmen, 2 MS Supreme Court Justices , and a host of local positions, such as election commissioners.

We hear and see a lot of talk about Mississippi being subject to Federal oversight in her elections.  Below is a brief explanation of that Federal oversight.

Mississippi has a stormy past when it comes to voting rights – attempting to restrict minority access to voting –  and those past State actions can still be felt in today’s elections.  Mississippi is one of 8 states subject to the Department of Justice “pre-clearance” and oversight on any voting/election law changes pursuant to the Voting Rights Act of 1965. (Some sections of other states are subject to the pre-clearance oversight).

This legislation was designed to ensure the right of minority citizens to register and vote, and to prevent discriminatory laws passed by state and local entities. Both permanent and non-permanent provisions are proscribed. One permanent provision applies nationwide and outlaws any voting practice that results in the denial of voting rights on the basis of a person’s race, color, or membership in a language-minority group.

The non-permanent provisions that are relevant to Mississippi require “pre-clearance” of any changes in voting/election laws and  allows the DOJ to send federal observers to the polls in Mississippi

To pass muster any changes in voting/election laws must demonstrate that the voting change does not have the purpose or effect of discriminating on the basis of race or language minority. If the DOJ or the federal court determines that there is a discriminatory purpose or effect, then an objection is issued. If an objection is issued, the change cannot be put into operation.

Source: The Voting Rights Act and Mississippi 1965-2006, A Report of the RenewtheVRA.org, by Robert McDuff.

With that brief history of MS voting you can see the impact and importance that the right to vote has for many citizens.  Exercise your right to vote; let your voice be heard and your vote be counted.

Thompson Law Firm, PLLC            (601) 850-8000         Matthew@wmtlawfirm.com

Divorce, Child Custody & Child Support, Alimony, Contempt, Modification, Youth Court, Adoption and Appeals.

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