How Do I Conduct a Deposition in a Divorce in Virginia?
Full Question:
Answer:
§ 20-106. Testimony may be required to be given orally; how certified;
same footing as deposition. —
In any suit for divorce the trial court may require the whole or any
part of the testimony to be given orally in open court, and if either
party desires it, such testimony and the rulings of the court on the
exceptions thereto, if any, shall be reduced to writing, and the judge
shall certify that such evidence was given before him and such rulings
made. When so certified the same shall stand on the same footing as a
deposition regularly taken in the cause; provided, however, that no such
oral evidence shall be given or heard unless and until after such notice
to the adverse party as is required by law to be given of the taking of
depositions, or when there has been no service of process within this
Commonwealth upon, or appearance by the defendant against whom such
testimony is sought to be introduced.
§ 20-99. How such suits instituted and conducted;
costs.
Such suit shall be instituted and conducted as other suits in equity,
except as otherwise provided in this section:
1. No divorce, annulment, or affirmation of a marriage shall be granted
on the uncorroborated testimony of the parties or either of them.
2. Whether the defendant answers or not, the cause shall be heard
independently of the admissions of either party in the pleadings or
otherwise.
3. Process or notice in such proceedings shall be served in this
Commonwealth by any of the methods prescribed in § 8.01-296 by any
person authorized to serve process under § 8.01-293. Service may be
made on a nonresident by any of the methods prescribed in § 8.01-296
by any person authorized to serve process under § 8.01-320.
4. In cases where such suits have been commenced and an appearance has
been made on behalf of the defendant by counsel, then notices to take
depositions and of hearings, motions, and other proceedings except
contempt proceedings, may be served by delivering or mailing a copy to
counsel for opposing party, the foot of such notices bearing either
acceptance of service or a certificate of counsel in compliance with the
Rules of the Supreme Court of Virginia. "Counsel for opposing party"
shall include a pro se party who (i) has entered a general appearance in
person or by filing a pleading or endorsing an order of withdrawal of that
party's counsel, or (ii) has signed a pleading in the case or who has
notified the other parties and the clerk that he appears in the case.
5. Costs may be awarded to either party as equity and justice may
require.
Rule 4:5. Depositions Upon Oral Examination.
(a) When Depositions May Be Taken. — After
commencement of the action, any party may take the testimony
of any person, including a party, by deposition upon oral
examination. Leave of court, granted with or without notice,
must be obtained only if the plaintiff seeks to take a
deposition before the expiration of the period within which
a defendant may file a responsive pleading under Rule 3:8,
except that leave is not required (1) if a defendant has
served a notice of taking deposition, or (2) if special
notice is given as provided in subdivision (b)(2) of this
Rule. The attendance of witnesses may be compelled by
subpoena. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court
prescribes.
(a1) Taking of Depositions.
(i) Party Depositions. A deposition of a party, or any
witness designated under Rule 4:5(b)(6) to testify on behalf
of a party, shall be taken in the county or city in which
suit is pending, in an adjacent county or city, at a place
upon which the parties agree, or at a place that the court
in such suit may, for good cause, designate. Good cause may
include the expense or inconvenience of a non-resident party
defendant appearing in one of the locations specified in
this subsection. The restrictions as to parties set forth in
this subdivision (al)(i) shall not apply where no responsive
pleading has been filed or an appearance otherwise made.
(ii) Non-party Witness Depositions. Unless otherwise
provided by the law of the jurisdiction where a non-party
witness resides, a deposition of a non-party witness shall
be taken in the county or city where the non-party witness
resides, is employed, or has a principal place of business;
at a place upon which the witness and the parties to the
litigation agree; or at a place that the court may, for good
cause, designate.
(iii) Taking Depositions Outside the State. Within another
state, or within a territory or insular possession subject
to the dominion of the United States, or in a foreign
country, depositions may be taken (1) on notice before a
person authorized to administer oaths in the place in which
the examination is held, either by the law thereof or, where
applicable, the law of the United States, or (2) before a
person appointed or commissioned by the court in which the
action is pending, and such a person shall have the power by
virtue of such appointment or commission to administer any
necessary oath and take testimony, or (3) pursuant to a
letter rogatory. A commission or letter rogatory shall be
issued upon application and notice and on terms that are
just and appropriate. It is not requisite to the issuance of
a commission or a letter rogatory that the taking of the
deposition in any other manner is impracticable or
inconvenient. A notice or commission may designate the
person before whom the deposition is to be taken either by
name or descriptive title. A commission or letter rogatory
may be addressed "To the Appropriate Authority in (here name
the state, territory, or country)." Witnesses may be
compelled to appear and testify at depositions taken outside
this state by process issued and served in accordance with
the law of the jurisdiction where the deposition is taken
or, where applicable, the law of the United States. Upon
motion, the courts of this State shall issue a commission or
letter rogatory requesting the assistance of the courts or
authorities of the foreign jurisdiction.
(iv) Uniform Interstate Depositions and Discovery Act.
Depositions and related documentary production sought in
Virginia pursuant to a subpoena issued under the authority
of a foreign jurisdiction shall be subject to the provisions
of the Uniform Interstate Depositions and Discovery Act,
Virginia Code §§ 8.01-412.8 through 8.01-412.15.
(b) Notice of Examination: General Requirements; Special
Notice; Production of Documents and Things; Deposition of
Organization. — (1) A party desiring to take the
deposition of any person upon oral examination shall give
reasonable notice in writing to every other party to the
action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be
examined, if known, and, if the name is not known, a general
description sufficient to identify him or the particular
class or group to which he belongs. If a subpoena duces
tecum is to be served on the person to be examined, the
designation of the materials to be produced as set forth in
the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a
deposition by plaintiff if the notice (A) states that the
person to be examined is about to go out of the
Commonwealth, or is about to go out of the United States, or
is bound on a voyage to sea, and will be unavailable for
examination unless his deposition is taken before expiration
of the period for filing a responsive pleading under
Rule 3:8, and (B) sets forth facts to support the statement.
The plaintiffs attorney shall sign the notice, and his
signature constitutes a certification by him that to the
best of his knowledge, information, and belief the statement
and supporting facts are true.
If a party shows that when he was served with notice under
this subdivision (b)(2) he was unable through the exercise
of diligence to obtain counsel to represent him at the
taking of the deposition, the deposition may not be used
against him.
(3) The court may for cause shown enlarge or shorten the
time for taking the deposition.
(4) [Deleted.]
(5) The notice to a party deponent may be accompanied by a
request made in compliance with Rule 4:9 for the production
of documents and tangible things at the taking of the
deposition. The procedure of Rule 4:9 shall apply to the
request.
(6) A party may in his notice name as the deponent a public
or private corporation or a partnership or association or
governmental agency and designate with reasonable
particularity the matters on which examination is requested.
The organization so named shall designate one or more
officers, directors, or managing agents, or other persons
who consent to testify on its behalf, and may set forth, for
each person designated, the matters on which he will
testify. The persons so designated shall testify as to
matters known or reasonably available to the organization.
This subdivision (b)(6) does not preclude taking a
deposition by any other procedure authorized in these Rules.
(7) Unless the court orders otherwise, a deposition may be
taken by telephone, video conferencing, or teleconferencing.
A deposition taken by telephone, video conferencing, or
teleconferencing shall be taken before an appropriate
officer in the locality where the deponent is present to
answer questions propounded to him.
(c) Examination and Cross-Examination; Record of
Examination; Oath; Objections. — Examination and
cross-examination of witnesses may proceed as permitted at
the trial. The officer before whom the deposition is to be
taken shall put the witness on oath and shall personally, or
by someone acting under his direction and in his presence,
record the testimony of the witness. If requested by one of
the parties, the testimony shall be transcribed.
All objections made at time of the examination to the
qualifications of the officer taking the deposition, or to
the manner of taking it, or to the evidence presented, or to
the conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to
the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed
envelope on the party taking the deposition and he shall
transmit them to the officer, who shall propound them to the
witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. — At
any time during the taking of the deposition, on motion of a
party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is pending
or the court in the county or city where the deposition is
being taken may order the officer conducting the examination
to cease forthwith from taking the deposition, or may limit
the scope and manner of the taking of the deposition as
provided in Rule 4.1(c). If the order made terminates the
examination, it shall be resumed thereafter only upon the
order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make
a motion for an order. The provisions of Rule 4.12(a)(4)
apply to the award of expenses incurred in relation to the
motion.
(e) Submission to Witness; Changes; Signing. — When
the testimony is fully transcribed, the deposition shall be
submitted to the witness for examination and shall be read
to or by him, unless such examination and reading are waived
by the witness and by the parties. Any changes in form or
substance which the witness desires to make shall be entered
upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition
shall then be signed by the witness, unless the parties by
stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is not
signed by the witness within 21 days of its submission to
him, the officer shall sign it and state on the record the
fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together with the
reason, if any, given therefor; and the deposition may then
be used as fully as though signed unless on a motion to
suppress under Rule 4:7(d)(4) the court holds that the
reasons given for the refusal to sign require rejection of
the deposition in whole or in part.
(f) Certification and Filing by Officer; Exhibits;
Copies; Notice of Filing.
(1) The officer shall certify on the deposition that the
witness was duly sworn by him and that the deposition is a
true record of the testimony given by the witness. In a
divorce or annulment case, he shall then promptly file the
deposition in the office of the clerk, notifying all other
parties of such action. In all other cases, he shall then
lodge it with the attorney for the party who initiated the
taking of the deposition, notifying the clerk and all
parties of such action. Depositions taken pursuant to this
Rule or Rule 4:6 (except depositions taken in divorce and
annulment cases) shall not be filed with the clerk until the
court so directs, either on its own initiative or upon the
request of any party prior to or during the trial.
Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a
party, be marked for identification and annexed to and
returned with the deposition, and may be inspected and
copied by any party, except that (A) the person producing
the materials may substitute copies to be marked for
identification, if he affords to all parties fair
opportunity to verify the copies by comparison with the
originals, and (B) if the person producing the materials
requests their return, the officer shall mark them, give
each party an opportunity to inspect and copy them, and
return them to the person producing them, and the materials
may then be used in the same manner as if annexed to and
returned with the deposition. Any party may move for an
order that the original be annexed to and returned with the
deposition to the court, pending final disposition of the
case.
(2) Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the deposition to any party or to
the deponent.
(3) The party taking the deposition shall give prompt notice
of its filing to all other parties.
(g) Failure to Attend or to Serve Subpoena;
Expenses. — (1) If the party giving the notice of the
taking of a deposition fails to attend and proceed therewith
and another party attends in person or by attorney pursuant
to the notice, the court may order the party giving the
notice to pay to such other party the reasonable expenses
incurred by him and his attorney in attending, including
reasonable attorney's fees.
(2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him
and the witness because of such failure does not attend, and
if another party attends in person or by attorney because he
expects the deposition of that witness to be taken, the
court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by him and his
attorney in attending, including reasonable attorney's fees.
Rule 4:5. Depositions Upon Oral Examination.
(a) When Depositions May Be Taken. — After
commencement of the action, any party may take the testimony
of any person, including a party, by deposition upon oral
examination. Leave of court, granted with or without notice,
must be obtained only if the plaintiff seeks to take a
deposition before the expiration of the period within which
a defendant may file a responsive pleading under Rule 3:8,
except that leave is not required (1) if a defendant has
served a notice of taking deposition, or (2) if special
notice is given as provided in subdivision (b)(2) of this
Rule. The attendance of witnesses may be compelled by
subpoena. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court
prescribes.
(a1) Taking of Depositions.
(i) Party Depositions. A deposition of a party, or any
witness designated under Rule 4:5(b)(6) to testify on behalf
of a party, shall be taken in the county or city in which
suit is pending, in an adjacent county or city, at a place
upon which the parties agree, or at a place that the court
in such suit may, for good cause, designate. Good cause may
include the expense or inconvenience of a non-resident party
defendant appearing in one of the locations specified in
this subsection. The restrictions as to parties set forth in
this subdivision (al)(i) shall not apply where no responsive
pleading has been filed or an appearance otherwise made.
(ii) Non-party Witness Depositions. Unless otherwise
provided by the law of the jurisdiction where a non-party
witness resides, a deposition of a non-party witness shall
be taken in the county or city where the non-party witness
resides, is employed, or has a principal place of business;
at a place upon which the witness and the parties to the
litigation agree; or at a place that the court may, for good
cause, designate.
(iii) Taking Depositions Outside the State. Within another
state, or within a territory or insular possession subject
to the dominion of the United States, or in a foreign
country, depositions may be taken (1) on notice before a
person authorized to administer oaths in the place in which
the examination is held, either by the law thereof or, where
applicable, the law of the United States, or (2) before a
person appointed or commissioned by the court in which the
action is pending, and such a person shall have the power by
virtue of such appointment or commission to administer any
necessary oath and take testimony, or (3) pursuant to a
letter rogatory. A commission or letter rogatory shall be
issued upon application and notice and on terms that are
just and appropriate. It is not requisite to the issuance of
a commission or a letter rogatory that the taking of the
deposition in any other manner is impracticable or
inconvenient. A notice or commission may designate the
person before whom the deposition is to be taken either by
name or descriptive title. A commission or letter rogatory
may be addressed "To the Appropriate Authority in (here name
the state, territory, or country)." Witnesses may be
compelled to appear and testify at depositions taken outside
this state by process issued and served in accordance with
the law of the jurisdiction where the deposition is taken
or, where applicable, the law of the United States. Upon
motion, the courts of this State shall issue a commission or
letter rogatory requesting the assistance of the courts or
authorities of the foreign jurisdiction.
(iv) Uniform Interstate Depositions and Discovery Act.
Depositions and related documentary production sought in
Virginia pursuant to a subpoena issued under the authority
of a foreign jurisdiction shall be subject to the provisions
of the Uniform Interstate Depositions and Discovery Act,
Virginia Code §§ 8.01-412.8 through 8.01-412.15.
(b) Notice of Examination: General Requirements; Special
Notice; Production of Documents and Things; Deposition of
Organization. — (1) A party desiring to take the
deposition of any person upon oral examination shall give
reasonable notice in writing to every other party to the
action. The notice shall state the time and place for taking
the deposition and the name and address of each person to be
examined, if known, and, if the name is not known, a general
description sufficient to identify him or the particular
class or group to which he belongs. If a subpoena duces
tecum is to be served on the person to be examined, the
designation of the materials to be produced as set forth in
the subpoena shall be attached to or included in the notice.
(2) Leave of court is not required for the taking of a
deposition by plaintiff if the notice (A) states that the
person to be examined is about to go out of the
Commonwealth, or is about to go out of the United States, or
is bound on a voyage to sea, and will be unavailable for
examination unless his deposition is taken before expiration
of the period for filing a responsive pleading under
Rule 3:8, and (B) sets forth facts to support the statement.
The plaintiffs attorney shall sign the notice, and his
signature constitutes a certification by him that to the
best of his knowledge, information, and belief the statement
and supporting facts are true.
If a party shows that when he was served with notice under
this subdivision (b)(2) he was unable through the exercise
of diligence to obtain counsel to represent him at the
taking of the deposition, the deposition may not be used
against him.
(3) The court may for cause shown enlarge or shorten the
time for taking the deposition.
(4) [Deleted.]
(5) The notice to a party deponent may be accompanied by a
request made in compliance with Rule 4:9 for the production
of documents and tangible things at the taking of the
deposition. The procedure of Rule 4:9 shall apply to the
request.
(6) A party may in his notice name as the deponent a public
or private corporation or a partnership or association or
governmental agency and designate with reasonable
particularity the matters on which examination is requested.
The organization so named shall designate one or more
officers, directors, or managing agents, or other persons
who consent to testify on its behalf, and may set forth, for
each person designated, the matters on which he will
testify. The persons so designated shall testify as to
matters known or reasonably available to the organization.
This subdivision (b)(6) does not preclude taking a
deposition by any other procedure authorized in these Rules.
(7) Unless the court orders otherwise, a deposition may be
taken by telephone, video conferencing, or teleconferencing.
A deposition taken by telephone, video conferencing, or
teleconferencing shall be taken before an appropriate
officer in the locality where the deponent is present to
answer questions propounded to him.
(c) Examination and Cross-Examination; Record of
Examination; Oath; Objections. — Examination and
cross-examination of witnesses may proceed as permitted at
the trial. The officer before whom the deposition is to be
taken shall put the witness on oath and shall personally, or
by someone acting under his direction and in his presence,
record the testimony of the witness. If requested by one of
the parties, the testimony shall be transcribed.
All objections made at time of the examination to the
qualifications of the officer taking the deposition, or to
the manner of taking it, or to the evidence presented, or to
the conduct of any party, and any other objection to the
proceedings, shall be noted by the officer upon the
deposition. Evidence objected to shall be taken subject to
the objections. In lieu of participating in the oral
examination, parties may serve written questions in a sealed
envelope on the party taking the deposition and he shall
transmit them to the officer, who shall propound them to the
witness and record the answers verbatim.
(d) Motion to Terminate or Limit Examination. — At
any time during the taking of the deposition, on motion of a
party or of the deponent and upon a showing that the
examination is being conducted in bad faith or in such
manner as unreasonably to annoy, embarrass, or oppress the
deponent or party, the court in which the action is pending
or the court in the county or city where the deposition is
being taken may order the officer conducting the examination
to cease forthwith from taking the deposition, or may limit
the scope and manner of the taking of the deposition as
provided in Rule 4.1(c). If the order made terminates the
examination, it shall be resumed thereafter only upon the
order of the court in which the action is pending. Upon
demand of the objecting party or deponent, the taking of the
deposition shall be suspended for the time necessary to make
a motion for an order. The provisions of Rule 4.12(a)(4)
apply to the award of expenses incurred in relation to the
motion.
(e) Submission to Witness; Changes; Signing. — When
the testimony is fully transcribed, the deposition shall be
submitted to the witness for examination and shall be read
to or by him, unless such examination and reading are waived
by the witness and by the parties. Any changes in form or
substance which the witness desires to make shall be entered
upon the deposition by the officer with a statement of the
reasons given by the witness for making them. The deposition
shall then be signed by the witness, unless the parties by
stipulation waive the signing or the witness is ill or
cannot be found or refuses to sign. If the deposition is not
signed by the witness within 21 days of its submission to
him, the officer shall sign it and state on the record the
fact of the waiver or of the illness or absence of the
witness or the fact of the refusal to sign together with the
reason, if any, given therefor; and the deposition may then
be used as fully as though signed unless on a motion to
suppress under Rule 4:7(d)(4) the court holds that the
reasons given for the refusal to sign require rejection of
the deposition in whole or in part.
(f) Certification and Filing by Officer; Exhibits;
Copies; Notice of Filing.
(1) The officer shall certify on the deposition that the
witness was duly sworn by him and that the deposition is a
true record of the testimony given by the witness. In a
divorce or annulment case, he shall then promptly file the
deposition in the office of the clerk, notifying all other
parties of such action. In all other cases, he shall then
lodge it with the attorney for the party who initiated the
taking of the deposition, notifying the clerk and all
parties of such action. Depositions taken pursuant to this
Rule or Rule 4:6 (except depositions taken in divorce and
annulment cases) shall not be filed with the clerk until the
court so directs, either on its own initiative or upon the
request of any party prior to or during the trial.
Documents and things produced for inspection during the
examination of the witness, shall, upon the request of a
party, be marked for identification and annexed to and
returned with the deposition, and may be inspected and
copied by any party, except that (A) the person producing
the materials may substitute copies to be marked for
identification, if he affords to all parties fair
opportunity to verify the copies by comparison with the
originals, and (B) if the person producing the materials
requests their return, the officer shall mark them, give
each party an opportunity to inspect and copy them, and
return them to the person producing them, and the materials
may then be used in the same manner as if annexed to and
returned with the deposition. Any party may move for an
order that the original be annexed to and returned with the
deposition to the court, pending final disposition of the
case.
(2) Upon payment of reasonable charges therefor, the officer
shall furnish a copy of the deposition to any party or to
the deponent.
(3) The party taking the deposition shall give prompt notice
of its filing to all other parties.
(g) Failure to Attend or to Serve Subpoena;
Expenses. — (1) If the party giving the notice of the
taking of a deposition fails to attend and proceed therewith
and another party attends in person or by attorney pursuant
to the notice, the court may order the party giving the
notice to pay to such other party the reasonable expenses
incurred by him and his attorney in attending, including
reasonable attorney's fees.
(2) If the party giving the notice of the taking of a
deposition of a witness fails to serve a subpoena upon him
and the witness because of such failure does not attend, and
if another party attends in person or by attorney because he
expects the deposition of that witness to be taken, the
court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by him and his
attorney in attending, including reasonable attorney's fees.
