What Are Family Law Depositions?

When someone files a divorce or child custody case, they are starting a lawsuit, and lawsuits involve a process called “discovery.” Discovery is exactly what it sounds like: an opportunity for each party to the lawsuit to discover information that can help support their own arguments in the case. There are multiple types of discovery tools, including an in-person or Zoom examination conducted under oath by an attorney—depositions.

Not all divorce or custody matters have depositions; they are more common in cases that involve significant assets, or allegations of fault or parental unfitness. If the other attorney in your case has scheduled a deposition, or your attorney has recommended one, it’s important for you to be prepared. Information gathered in a deposition can have a significant impact on the outcome of your family law case.

What is a Deposition?

A deposition is an examination under oath. An attorney for one party to the case may depose any witness in the case, including the other party. The person being deposed is referred to as the deponent. The deposition takes place some time before the trial, and is usually conducted at the office of the attorney taking the deposition.

Depositions are recorded—usually by a court reporter, but sometimes also by a videographer. Typically, both parties and their attorneys are present, in addition to the person recording the deposition. In some cases, other witnesses or an interpreter may be present if needed.

In the deposition, the court reporter administers an oath and the deponent swears to tell the truth. The attorney who scheduled the deposition asks questions of the deponent. Because most divorce cases settle before trial, a deposition may be the only time during the case that a party is questioned directly by the other party’s attorney.

Why is My Deposition Being Taken, and What Can I Do About It?

If the other party’s attorney has sent you a Notice of Deposition, they probably believe that they can gain some valuable information for their case by questioning you under oath. Depositions are time-consuming and costly, so most attorneys don’t schedule them unless there is something in particular they hope to learn that they cannot confirm in another way.

As to what you can do about it, the answer is: not much other than prepare with your own attorney. You will have your attorney with you at the deposition, and, if appropriate, your attorney can also schedule a deposition of your spouse or opposing party

What Kinds of Questions Are Asked in Family Law Depositions?

Family law depositions can cover a wide range of issues; it’s easier in a way, to talk about what the questioning attorney cannot ask. The deposing attorney cannot ask about privileged communications between the deponent and their attorney, or in some States other professionals such as mental health providers, accountants, and doctors . Nor can they ask about criminal behavior, if the deponent asserts their Fifth Amendment right not to incriminate themselves. Lastly, the deposing attorney cannot ask about matters that are completely irrelevant to the case. If you are being deposed and you are asked anything that is off-limits, your attorney will object.

You cannot refuse to answer a question just because you don’t like it or because it would be embarrassing—and there may be many such questions. You may be asked about sensitive issues like:

• Adultery or other marital misconduct
• Alcohol or drug abuse
• Income, assets, and debts
• Cruelty or abusive behavior
• How you care for or discipline your children
• Work history
• Mental health

As long as the questions being asked are relevant to the issues in your case, you must provide answers.

How Do I Prepare For Depositions?

Your attorney will work with you to prepare to have your deposition taken. It is critically important to be honest with your attorney when preparing for a deposition: make sure they are aware of anything damaging you fear you might be asked. This is no time for secrets—if your attorney is blindsided by a line of questions during the deposition itself, they may not be able to help you as effectively as if they were prepared.

Your deposition may be the first, and last, time you will ever be questioned under oath. It is an intimidating process for most people. Knowing what to expect and being mentally prepared is the best way to keep anxiety at bay. Here are some tips:

• Take your time. Listen carefully to the question you have been asked. Pause before you answer, in case your attorney wants to object to the question, and answer only what was asked; don’t volunteer information. If necessary, ask the deposing attorney to repeat the question.
• If you don’t understand a question, ask your attorney to clarify it before attempting to answer.
• Tell the truth. You are under oath, and if you lie, you are committing perjury—that’s a felony.
• If you don’t know something, don’t guess or make something up; it’s okay to say “I don’t know” or “I don’t remember.” If you do not recall details exactly, but you can give approximate information, make it clear that you are approximating.
• Remain calm. You are already under stress, and the deposing attorney may try to provoke you in the hopes that you will lose your temper and say something you didn’t mean to in an unguarded moment. Remember that losing your cool in a deposition never benefits you.
• It’s okay to ask for a break in between questions to speak privately with your attorney.
• Remember that no matter how pleasant or friendly the other attorney seems, they are working for the other party—not you.

In addition to gathering evidence for trial, the other side may use testimony from your deposition in court to cross-examine you and impeach your credibility at trial. Your words in a deposition matter, because they can be used against you later.

What Do I Have to Gain From Taking a Deposition?

If you are being deposed, your deposition testimony can allow you to provide your version of events and clarify any misunderstandings of fact in your case. Ideally, the information you provide during your deposition will make the other side more inclined to settle the case in a favorable way.

However, as noted above, it can be dangerous to provide too much information, especially unsolicited information. Listen carefully to your lawyer’s guidance during preparation. To learn more about depositions in family law or how to prepare for a deposition, contact Strickler, Platnick & Hatfield to schedule a consultation.