Divorce Deposition Tips and How to Prepare
If you’re going through a divorce, your spouse’s attorney may ask to depose you (or your attorney may ask to depose your spouse) prior to going to trial. A deposition for divorce can be stressful but it doesn’t have to be, especially if you prepare beforehand. What are divorce depositions like and how can you best prepare to be deposed? We answer those questions (and more) and share some divorce deposition tips below.
What is a divorce deposition?
The scope of a deposition in civil litigation—like a divorce—is generally an information gathering form of discovery. Discovery is a pre-trial process during which each side of a lawsuit has the opportunity to request information from the other side that is relevant to that lawsuit.
A deposition for divorce is typically held in a formal setting with both parties to the divorce lawsuit present, along with their attorneys and a court reporter who records the testimony given. If any other attorneys are involved with the case, such as an ad litem or amicus attorney representing the interests of the parties’ children, they may attend the deposition in divorce as well.
During a deposition in divorce, the court reporter will ask the deposition witness to raise their right hand and take an oath to tell the truth. Next, attorneys from both sides may take turns asking the deposition witness questions. However, if you’re being deposed by your spouse’s attorney, you can expect that he or she will likely ask the majority of questions. Your attorney may also object to certain questions your spouse’s attorney asks and advise you not to answer.
Spouses who are party to a divorce are not the only witnesses asked to provide testimony for a divorce deposition. Other parties with information that has a bearing on divorce and child custody cases may be asked to appear. These witnesses may include the couple’s friends, family members and business associates or witnesses with information pertaining to the children (teachers, family members, family therapists, etc.).
Keep in mind, if you are requested to appear at a deposition for your divorce or child custody case or another party’s divorce or child custody case, you are legally obligated to appear.
What is the purpose of a divorce deposition?
Divorce attorneys generally use the deposition for divorce to serve two functions. The first is to gather information and testimony that is favorable to their case. The second function is to get the witness to make potentially unfavorable admissions under oath that benefit their client’s case.
In terms of information gathering, the divorce deposition process is particularly useful in cases where a client has been shut out of financial accounts or prevented from making other important decisions during a marriage. They may not know what to look for or where, especially if the other party hasn’t been forthcoming about providing information about assets in the marital estate or business interests. In cases involving child custody, depositions may also be used to gather information about issues pertaining to the children.
The second function of a divorce deposition is more strategic: getting the witness to make unfavorable admissions, perjurious statements or lies under oath. This works especially well when the attorney has a “smoking gun” or documentary evidence the deposed party doesn’t realize the attorney has. These questions can be tricky, and even if the attorney doesn’t lock the party into a lie, the attorney may be able to lock them into a response made under oath that will come across as doubtful in the judge’s eyes.
Some divorce lawyers also misuse the deposition divorce process. They may use them as a scare tactic to unsettle the other side or just take a deposition for the sake of taking a deposition. At the same time, many inexperienced lawyers don’t even engage with their clients on a clear-cut strategy regarding what information they’re trying to gather and why.
Divorce depositions are not a required step in the divorce process. Taking a deposition can also be risky because you don’t want to show your hand per se, like revealing your smoking gun. And because divorce depositions are costly, our firm avoids them if they aren’t absolutely necessary. We only do depositions in a limited number of cases.
Divorce deposition sample questions
If you’ve been asked to appear at a divorce deposition, you may be wondering, “What divorce deposition questions will I be asked?” If you have an experienced divorce attorney, he or she will probably be able to anticipate what questions your spouse’s attorney will ask you and help you prep your responses.
In general, divorce deposition questions are open ended in nature because the intent is to gather as much information and testimony as possible. The attorney’s goal when asking divorce deposition questions is to solidify the evidence they need to back up their client’s divorce or child custody case, as well as properly value the couple’s marital estate. Some divorce deposition sample questions may include:
- What do you do?
- What hours do you work?
- What is your income?
- Tell me about businesses you own or have an interest in.
- How would you describe your physical and mental health?
- Tell me about your estate.
- Tell me about your house.
- What kind of improvements did you make to your house?
- How do you help your kids with homework?
- What are your children’s interests?
- How would you describe your relationship with your kids?
- How do you discipline your kids?
- What recreational activities do you participate in?
- What does your living situation look like?
Since every divorce and child custody case is unique, these divorce deposition questions may not be relevant to your case—and you can be sure your spouse’s or former partner’s attorney will ask others. Again, your divorce attorney can provide a list of sample divorce deposition questions to expect and help you prepare.
Ten divorce deposition tips
While your divorce attorney is your best resource to help prepare for a deposition in divorce, you may want to consider the following divorce deposition tips as you prepare to be deposed.
Tip No. 1: Prepare for your deposition with your attorney.
The amount of pre-deposition preparation will depend on the complexity of your divorce. If your divorce is pretty simple (few to no assets, no children) you can typically expect prep time and the time for the deposition itself to be brief. If your case is more complex (multiple disputes over assets, complicated business interests, major disagreements about child custody), it will be important to practice questions with your attorney until he or she is satisfied with your response. The more you practice the more at ease you will be during the deposition.
Tip No. 2: Don’t lie.
You will be sworn in prior to being deposed, which means any false statements you make could result in perjury charges and have a negative impact on your case (judges don’t like liars). Which leads us to …
Tip No. 3: Don’t volunteer information.
While you are expected to tell the truth during a deposition, you don’t need to elaborate beyond the question asked. If the attorney needs more information, he or she will ask for it.
Tip No. 4: Take a breath and pause before answering questions.
Don’t let your spouse’s attorney make you feel pressured to respond quickly and say something you regret. It’s totally fine if you pause a moment to think about the question before answering.
Tip No. 5: If you don’t understand the question, ask for clarification.
Just as the attorney will press you for more details, you don’t need to answer a question you don’t understand. Whenever you need clarification, ask.
Tip No. 6: It’s OK to say “I don’t know.”
If you’re not 100% sure about an answer it’s perfectly fine to say “I don’t know” or “I don’t recall.” Don’t feel pressured to guess about an answer.
Tip No. 7: Don’t feel pressured to change your answer.
Attorneys will often ask witnesses the same question in different ways to try to get a different answer. If you’ve already answered the question, stick with your answer.
Tip No. 8: Don’t fall victim to mind games.
Some attorneys will pause for extended periods and stare or look at you funny in attempt to get you to offer more information. If you’ve answered the question, sit tight.
Tip No. 9: Review documents closely.
If the attorney asks you a question about a financial or legal document, you have the right to review the document (you should also read the fine print). It’s critical that you fully understand what you’re being asked about. Again, if you’re not sure how to respond, say you don’t know.
Tip No. 10: Review the deposition transcript.
Clients and their lawyers can correct statements in a deposition, even post-deposition. You have the right to change statements if you didn’t understand something or the answer sounds vague or ambiguous, or if the testimony might suggest something that’s not accurate.
A few divorce deposition tips if you’re on the other side
I often have clients who want to submit questions to be asked of their spouse during a divorce deposition, which I encourage. After all, my clients know their spouses better than I do. So, if you have questions you want answered, share those with your attorney. He or she may want to tweak the questions and add a few others but writing a list of questions and passing them along is a great idea.
It’s also important to realize that just because your attorney didn’t beat his or her chest like Tarzan or bark like a bulldog, doesn’t mean the attorney isn’t aggressive or tough. A softer approach during the deposition may be strategic on the attorney’s side. If you’re concerned about the attorney’s demeanor, ask. He or she may just be planning to save their more assertive side for trial.
When people tell me they want a bulldog or an aggressive attorney, I tell them all the time, what you really want is assertive. What you really want is compassionate. What you really want is someone who’s engaged and understands the level of detail that it takes to get the optimum outcome for your case. Anybody can be aggressive, and anybody can scream. If an attorney doesn’t use depositions as a strategy in the case—and just does depositions to do them—I think that’s a real disservice to their clients.
If you have questions about divorce and child custody in Texas and are searching for the best divorce lawyers in Fort Worth or the greater metroplex, we’d love to hear from you. Contact us today to schedule a confidential case review with our founder divorce attorney Justin Sisemore.
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