What to Expect in a Divorce or Custody Deposition

Sep 16

What to Expect in a Divorce or Custody Deposition

What to Expect in a Divorce or Custody Deposition

One of the most stressful and vital events in a family law case is deposition. A deposition is a common form of ‘discovery.’

At the most basic level, a deposition is a one-sided question and answer session. The lawyer requesting the deposition gets to ask questions of the other parent/spouse (the ‘deponent’). There are very few limitations on the questions that can be asked, and little a deponent can do to avoid answering them. Courtroom testimony is much more limited.

A typical deposition takes place in a lawyer’s office, with both lawyers and clients present. There is usually a Court Reporter present, and sometimes a videographer.

Preparation for the deposition is vital, both for the questioning lawyer and the deponent. The lawyer must understand what the key issues are in the case and ask the right questions to get answers. Suppose the lawyer is trying to get certain key information. In that case, they need to know what specific questions to ask and be aware of the likely answers that are attempting to avoid giving up information.

The deponent should be giving as little information as possible. Most deponents think that they are in a deposition to convince the opposing lawyer that they are right, and so they give long answers with more information than is being requested. This is a mistake because it will often lead to valuable information being provided that can be used against the deponent.

What Can Be Asked?

Only a few categories of questions are off-limits in a deposition. This means that the deponent can be asked to answer seemingly intrusive questions about their finances, sexual behavior, relationships, and parenting. The list of uncomfortable topics is very long. The list of off-limits topics is short:

  • Attorney-client privileged communications;
  • Criminal behavior (if the deponent opts to take the 5th Amendment – which CAN and WILL be used against them in a trial);
  • Anything completely irrelevant.

Most depositions are limited to six hours of questioning, although many end up taking less than that. In rare circumstances, depositions can last more than six hours.

Trial vs. Deposition

Depositions are broader because they are part of the discovery process, which aims to gather general information intended to be boiled down to the most critical parts. These limited bits of key information become evidence in a trial. Questions in a trial are limited and subject to a large number of objections.

Divorce Questions

Questions related to children of a marriage are the “Custody Questions” section below. This section is about the ‘fault’ and financial issues in a divorce.

Texas allows divorces to be granted on a ‘fault’ basis and for that fault to be considered when dividing property. The fault usually falls into two categories: adultery and cruel treatment. Adultery is precisely that – cheating on your spouse. Establishing whether that occurred used to be difficult before mobile phones. Now it is easy, because relationships involve communication, and that communication takes place on the phone. Depositions over adultery can get into very private and embarrassing territory, but it is allowed.

Cruel treatment can be physical or verbal or both. This often has ‘he said / she said’ components, but sometimes there is clear evidence one way or the other. It may also be a matter of perspective or occur in a situation where both spouses feel that they were the victim. Depositions can get into the details of these behaviors.

Divorce depositions also involve inquiries into the deponent’s finances. This can go back to before the marriage and include full disclosure of current assets and debts. There will likely be questions about income and employment. If the deponent has a business, that will probably be the subject of extensive questioning. The deponent may have to answer questions about spending suspected of being on a romantic partner, or transfers to friends/family members/romantic partners.

Custody Questions

Custody questions tend to fall into two categories: 

  1. Is someone an incompetent parent; and
  2. Who is the better / more involved parent.

The first category revolves around the question of whether a parent has something so wrong with them that they cannot parent. Examples include addiction, mental illness, and anger management issues. If these issues have been raised, expect specific questioning about them.

Questions about addiction fall into two categories: legal and illegal substance abuse. Legal substance abuse is usually alcohol. There is also improper use of prescription medication. These are the most difficult substance abuse cases because the defense will always be that the substances are being used properly, the other parent knew and consented, etc.

Mental health questions focus on any diagnosis and then treatment. Problems for a deponent arise either when they deny a real mental illness or refuse proper treatment. Questioning usually attempts to establish either of these problems. Depression and anxiety are common but typically aren’t debilitating, but can be.

Anger management usually involves law enforcement involvement, although not always. There is typically a component of ‘he said / she said’, so establishing basic facts are important.

To learn more about processes within your divorce or custody case, check out our blog.

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