What is a divorce deposition? What are common questions you might be asked? How much does it cost? How should you prepare for a deposition?
I sat down with Matt Bogosian, a Certified Family Law Specialist and Senior Trial Attorney at Holstrom, Block and Parke, APLC to answer these questions and more.
Knowing what to expect from a deposition will help alleviate your anxiety so you can be better prepared.
Let’s jump into the conversation.
A divorce deposition is a question-and-answer session, similar to testimony in a court of law. There is a court reporter who types and transcribes the questions and the answers.
In addition, an oath is taken by the person being asked the question to testify truthfully and under the penalty of perjury as if they were in a court of law.
Some of the differences between a deposition and in-court testimony are as follows:
First, a deposition does not take place in a courtroom. The deposition takes place generally in a conference room or other location. It can be in a courthouse, but generally takes place at a law office or other mutually agreed location.
The second difference is there is generally no judge present unless the parties agree to have a private judge present. Sometimes this occurs when a discovery referee is appointed. They can rule on various objections that are made during the course of the deposition.
However, most of the time, the deposition takes place with only a lawyer. First, a lawyer asking the questions, as well as a lawyer representing the person being asked the questions. They are there to make objections when questions are asked that call for privileged matters or matters that are simply outside the scope of permissible discovery.
In most states, discovery rules are broad, meaning the attorney asking the questions in a deposition can go into more detail in asking questions than might be permitted in a courtroom. A question might be outside the scope of what might be allowed into evidence in a courtroom, but it is permissible in the context of a deposition simply to allow for the gathering of information.
The fact of the matter is that most depositions are just that, a search for information.
The information relates to the case being tried. In a deposition, the person being asked the questions can also be asked to bring documents. This is generally requested in a notice of deposition before the deposition occurs. The attorney asking the deposition questions can list any number of documents that are relevant in the case in order to ask questions about those documents during the deposition.
At a divorce deposition, the person who’s having the deposition taken can expect to have questions asked about every aspect of the divorce.
If there are children involved, it is very possible that you will get questions about the amount of time each parent has spent with the children, the relationship between the children. It is even possible the questions may be asked about significant others that might give ground to privacy objections from the other attorney.
This is probably the most challenging area of divorce deposition, the issue of custody and visitation, because of the sensitive nature of the issues involved.
If support is involved in the case, questions may be asked about income, tax returns may be produced, and there may be questions about what has gone into the tax return and what has gone into documents that have been filed in court alleging certain amounts of income.
There may also be questions about monthly living expenses and any other aspects of support including that person’s earning capacity. This can include questions about the education, training, experience, job history, and even whether search efforts have taken place to find a job if the person is unemployed.
If there are property issues involved, you can certainly expect questions about how a particular property was acquired, whether a deed was signed, and what representations were made to and from each of the divorcing parties in the context of those property transactions.
In a typical divorce case, some of the preliminary questions that might get asked would be something like this:
When did you first begin having a breakdown in your marital relationship?
This is a typical question that gets asked, especially in community property states like California where date of separation can determine whether a piece of property or a particular form of income is community property or a separate property.
So you may get asked whether or not a person moved out of the home at a particular point in time, and you might even be asked a question as to when the last time you had sexual relations with each other. This, in some states, is relevant.
In other states, adultery may still be a relevant issue. That does not occur in California, but some states still make adultery an issue, and so you might be asked questions about that as well.
When it pertains to a property in particular, a question might be asked such as, did you know what you were signing when you signed the deed? That’s a pretty typical question because often deeds get signed during the course of a marital relationship.
Sometimes one spouse tells the other spouse to sign the deed for credit purposes and makes promises or representation that that person will be placed on title later, and it doesn’t occur.
So if there were ever any property transactions, you can definitely expect questions about what went on during the time of the signing.
So the best way to prepare for a divorce deposition is to be as familiar as possible with the issues in your case, and discuss with your attorney the strengths and weaknesses of your case in each particular issue.
For example, if custody and visitation is an issue in your case, the best way to prepare for the deposition is to make a calendar of all the dates and times that you’ve spent with the children or child in your case over the last several years.
Also, make a list of all of the different activities that you’ve engaged in with the child and any participation you’ve had in the child’s school, as well as any and all participation you have had in the education and health of the child, including doctors visits and dental visits.
This will help you establish, during the course of the deposition, your involvement. If you haven’t taken the time before your deposition to familiarize yourself and refresh your recollection of all of the different ways you’ve been a model parent, you may be at a disadvantage in the deposition.
Another way to prepare for your divorce deposition, especially if there are issues of support and finances in your case, is to discuss with your attorney, and possibly an accountant, the possible issues that might exist with regard either to your income or the income of the other parent.
This could include, for example, the incomes that might have been declared on a joint tax return that might be artificially low and not consistent with the lifestyle of the parties during the marriage.
If the tax return shows a low amount of income and you know that the income was higher, you may want to discuss with your attorney and the CPA ways to defend against claims that the joint tax return is a true representation of the income if your goal is to show a trial that the income should actually be higher.
Conversely, if you want to show that the income was low, you’re going to have to prepare for how to justify why your income should be lower than it really is. So often when there are support issues, the best way to prepare is to go through the tax records, income records, and discuss the different issues that come up during your deposition about income.
Finally, for property issues, it’s very important to make a list of all of your assets and debts so that you can be prepared to answer questions. Also, go through all of the different deeds and other ownership records involving your property so that you’re familiar with the dates, times, and transaction.
Otherwise, you may be asked questions during your deposition and be unprepared to answer them properly.
Remember, in a deposition, your answers under oath assume that you have already prepared and understand the questions. You can be held at trial to those answers.
At the end of the deposition, you will be given a transcript, usually prepared within a few weeks. You will have a certain amount of time to review the deposition transcript. You can make changes to the deposition transcript if you feel certain answers were in error.
However, a court can consider changes made to the deposition transcript in assessing your credibility at trial. Therefore, it is better to be prepared for your deposition in advance rather than having to make changes later.
In determining the cost of a deposition, you have to consider a number of factors.
First, know who will be attending the deposition. If there is a discovery referee involved, the cost of the discovery referee will have to be factored in. Those are usually paid equally by the parties. A lawyer for each side will generally appear for depositions, and so the cost of your attorney will have to be factored in.
The cost of the deposition is largely dependent upon how much time the deposition takes. Some depositions only take an hour or two. Other depositions can go on for hours and even days.
Some states like California have a seven-hour limit, and a party has to request additional time in order to take a longer deposition. It’s important to ask your attorney for a time estimate and to find out if there are any limits to how long the deposition can take.
The more prepared you are for taking your own deposition, the faster the deposition will go. If the attorneys are highly litigious and excessive objections are made, this can cause the deposition to take longer.
In assessing general deposition costs in a hypothetical situation, let’s assume that each attorney bills $500 per hour and that the deposition takes four hours. That’s $2,000 for each lawyer. In addition, there are out-of-pocket costs for taking a deposition. This includes the cost of the reporter and the transcript to transcribe the deposition. This sometimes gets charged by the page. It can also get charged by the hour.
There may also be additional fees or exhibits that get attached to the deposition transcript. These costs for deposition transcripts can usually range anywhere from a couple hundred dollars to several thousand dollars depending on the length of the deposition and the length of the transcript.
In addition, it is possible to videotape the deposition. This requires you to pay for a videographer, and a videographer can charge by the hour.
Generally, these cost several hundred dollars to have a videotape deposition. It can cost upwards of $1,000 if the deposition takes an excessive amount of time or runs into multiple days.
So really, a deposition can cost anywhere from a thousand dollars for a short deposition with an attorney and a short transcript up to $5,000 or even $10,000, depending on whether there are multiple attorneys, multiple days, and a discovery referee.
At the outset, any party to a legal proceeding can be subject to a deposition. Third parties including experts as well as any other third party, or percipient witness, who personally observed or has personal knowledge of facts that might be relevant to the case.
In a typical divorce case involving support, each party may hire a forensic accountant. Those forensic accountants can be subject to having their depositions taken. If there is a CPA who prepared tax returns during the parties’ marriage, that certified public can be deposed.
In a custody case, the children under age 18 will not be deposed in most instances. Some states do allow children above a certain age to testify in court, and it is possible and even conceivable that adult children who have knowledge about younger children and custody issues could conceivably be subject to a deposition.
Attorneys have to be very sensitive about dragging children into the deposition, but it can occur, and you should be prepared for it.
Significant others and potential prospective spouses may actually be called in as third-party witnesses. This certainly does give rise to privacy concerns, and it is advisable for any third party to have their own attorney present to help make objection. The attorney representing the party generally does not represent a third party unless there is a waiver of any conflict of interest.
If there’s a business involved in the division of the divorce, partners, business partners, as well as other members of the corporation, may be called in to testify. Human resources and payroll executives may have their depositions taken if there are questions about the compensation of an executive or officer.
So, tips for winning a deposition when it’s your deposition being taken are:
Tip #1 – Listen carefully to each question before you answer.
Very often, you think that you know the question being asked and, in fact, the question is a trick question designed to trip you up.
Listen carefully, and if you do not understand the question being asked, explain that to the attorney asking the question. Ask them to either repeat it or rephrase it, and make sure you understand the question before you answer it.
Tip #2 – Do not volunteer more information than you need to.
Remember that this is a fact-finding expedition from the other side’s perspective. Do not look at your deposition as a way to prove your case at trial. It is not a trial, and in fact, by giving up too much information during your deposition, you may end up hurting your case more than helping it.
It also goes by much more quickly and at lower cost if you simply answer the question in a concise, effective and truthful manner.
Tip #3 – Make sure that your tone and mannerisms are positive.
In many cases, lawyers taking depositions use it as a preview for what to expect at trial. If you come across as combative, angry, or overly emotional, the attorney taking your deposition may see this as an advantage in the case. Then, they may be more likely to want to take the case to trial because they believe you will not present well in a courtroom.
Therefore, make sure that your mannerisms and tone are kind, polite, and professional so that the lawyer on the other side realizes that if they take this case all the way to trial, you will probably present well, and that may not be to their advantage.
One of the unique advantages of a deposition is that it is often one of the few times during the course of a litigation where attorneys, and in some cases the parties to a divorce, find themselves in the same room.
More often than not, at the conclusion of the deposition, there may be an opportunity to discuss settlement of your case. Do not underestimate the opportunity you have before, during, and even after the deposition to utilize the conference room and the presence of all the parties and the attorneys to discuss possible ways to settle your case.
This may be the only chance you have of sitting around a room and attempting an informal resolution before substantial additional attorney’s fees and costs are incurred preparing for a trial.
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
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