Depositions during a divorce case are the exception and not the rule. They’re expensive and are usually only worth the cost in extremely contentious cases where a trial is considered inevitable. Almost any question is permissible. No judge is present to rule that questions are irrelevant. The deposer can ask anything that might unearth information that can be used at trial, such as evidence of hidden assets or infidelity.
Depositions are an exploration tool, usually used toward the end of a case, not the beginning. Generally, the attorneys involved already have a pretty good grasp of the facts and they’re looking for more information on certain issues. They might use this information at trial, or as a guide as to where they should concentrate further discovery efforts. A deposition is taken under oath, so if you lie, you’re perjuring yourself.
Initial questions are usually very generic. They put the deponent at ease as he recites simple information, such as his date of birth, address and employment history. If the deponent filed the divorce complaint, an attorney might ask him about the information contained in it, such as his grounds for divorce.
When custody is an issue, the questions might become a great deal more personal. An attorney might ask about drug or alcohol use, either recreational or chronic. He might question the deponent about his relationships with people who might have a lot of contact with his child if the deponent receives custody. He can ask about brushes with the law, the deponent’s parenting style, or if he ever had custody or visitation problems involving a child from another relationship. An attorney will probably try to find out who, if anyone, might be testifying on the deponent’s behalf at trial, and he might later want to depose those individuals as well.
Financial questions might be just as intrusive, but they are usually more specific. A deposing attorney might ask, “At what financial institutions do you maintain investment accounts?” He might ask, “Have you transferred ownership of any assets during the past two years?” An attorney might ask for the deponent’s interpretation of financial documents already in his possession, or if any additional documents are available that pertain to the same asset.
Declining to Answer
If you’re being deposed, you have very few grounds on which to object to or decline to answer a question. Almost all questions are permissible. You don’t have to answer if the attorney questioning you is being unduly rude or hostile, and you can object to the way he phrases a question, but usually not to the question itself. If you do object, the person deposing you has the right to ask for court intervention. The procedure for this varies between states. In some jurisdictions, a telephone call to a judge can settle the dispute right then and there. In others, the questioning attorney might postpone continuation of the deposition until a judge can rule in a hearing whether you should answer the question.
- Minnesota Lawyers: Discovery Depositions in Divorce
- Indiana University School of Law; Depositions; James Alexander Tanford
- The Modern Woman’s Divorce Guide; Discovery Tools for Divorce; Helene L. Taylor, Esq.
- Robin Roshkind Divorce Law; Can a Divorce Lawyer Ask About Sexual Activity In a Deposition?; Robin Roshkind, Esq.
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