How Do I Prepare for a Divorce Deposition?

Testifying under oath can be a stressful experience. For many people, a divorce deposition is the first – sometimes only – time they will be cross examined by an attorney. That’s enough to make anyone nervous. Here are some tips for how to prepare for a divorce deposition, so you can understand what it is, how it’s used, and what you can do before and during your deposition testimony to relieve anxiety.

What is a Divorce Deposition?

In a Maryland family law case, a divorce deposition is an attorney’s opportunity to question the parties or other witnesses under oath before the case goes to trial. The deposition will generally be recorded and transcribed by a court reporter, creating a written record of the questions and answers. Both parties’ lawyers have the same right to schedule depositions and ask questions about issues related to your case, which may include:

• Income
• Assets and property
• Debts
• Custody
• Alimony
• Work history
• Child care
• Alcohol and drug use
• Fault

When attorneys subpoena third-party witnesses (such as the children’s teachers, grandparents, neighbors, or new romantic partners), they must issue a subpoena along with a notice of intention to take deposition. But spouses and co-parents are generally parties to a divorce or child custody case, so no subpoena is required. Instead, the other attorney will simply schedule a time and send you (or your attorney) a Notice of Deposition.

When you receive that Notice of Deposition, read it very carefully. Depositions often happen in attorneys’ offices (rather than courtrooms) or online through conference technology. Be sure you know where, when, and how to attend the meeting. In addition, your Notice of Deposition may require you to bring certain types of documents with you to the deposition. You and your attorney should carefully review this list ahead of time, to (1) make sure there are no objections to the requests and (2) give you time to gather the paperwork and make copies. Never give the other attorney your only copy of a document.

How Family Lawyers Use Divorce Depositions to Build Their Case

A divorce deposition is a discovery tool that lawyers can use to investigate different aspects of their case, and find out what more information they need to prepare for trial. For example, an attorney may ask where you have bank accounts during your deposition, so they know where to send a subpoena to get bank records.

They may also ask questions to see if there are any areas where you and your spouse already agree. For example, the attorney may ask you whether you intend to ask the Court for possession of the marital home at trial. This isn’t necessarily a trap. Instead, it could result in both parties agreeing the home should be awarded to one party or sold and the proceeds divided.

However, there is also an adversarial aspect to divorce depositions. Every answer you give is under oath – meaning you swear that you are telling the truth before you start. If your answers change between the deposition and trial, the attorney can use your earlier testimony to “impeach” what you say on the stand. Giving two different answers to the same question will make the judge question your honesty and credibility. That’s why both attorneys will generally get copies of the transcripts from depositions to be used later.

If I Get Deposed, Will I Still Have to Testify in Court?

Divorce depositions can serve two purposes:

1. Pre-trial discovery into the issues of the case (discussed above)
2. Replacing in-court testimony for unavailable witnesses

The second option is most often used for experts and professional witnesses whose schedules prevent them from attending court in person, or for witnesses who live far away. The parties can agree, for example, to save time and expert witness fees by having a child’s pediatrician testify in a deposition in advance, rather than making them appear in court on the day of trial. A transcript can also be admitted in court if a person becomes unable to testify after giving their deposition, such as if they have died or become ill in the meantime.

However, as a party to your divorce, you will need to be available and in court when your case goes to trial. Unlike in criminal cases, where defendants often assert their right to remain silent, most divorce cases center on the testimony of the parties. You and your spouse have the most direct knowledge of what happened during your marriage, including information that isn’t available any other way. That means, even if you attend a divorce deposition, you should still expect to testify if you take your matter to trial.

How to Prepare for a Virtual Deposition

If your divorce deposition is being taken remotely, through Zoom, Teams, or another video conferencing software, it can create challenges that don’t happen when everyone is together in one room. The single best thing you can do to prepare for a virtual deposition is to ask your attorney to hold a practice session using the exact same circumstances:

• Be in the same place
• Connect to the same internet
• Use the same computer or tablet and software
• Dress the same way (remember, your deposition video may be shown in court, so dress to impress the judge!)
• Practice sharing your screen and viewing shared documents
• Test your microphone, speakers, camera, and background (don’t forget to move anything personal or embarrassing!)

Engaging in a practice session can make sure that you understand how to use the technology, and gives your attorney a chance to provide pointers on how to improve your presentation. It also gives you a chance to spot and address any issues you may not have thought of in advance that will interfere with the deposition (like an intrusive pet, or unstable internet connection).

Do’s and Don’ts for Answering Deposition Questions

Do Answer Out Loud and Clearly

Your divorce deposition is being transcribed by a court reporter. That means that gestures like nodding and shaking your head won’t show up in the transcript. Also, everyday responses like “uh-huh” and “uh-uh” can be hard to distinguish in writing. Always answer questions out loud, saying “yes” or “no.” Try to speak clearly and loud enough for everyone in the room to understand you.

This is especially important if you are being deposed in a videoconference. The built-in microphone in your phone or laptop may not be very strong. You may want to use a headset or dedicated microphone, to make sure you are more clearly understood.

Don’t Talk Over Other Speakers

In normal conversation, it is common to anticipate what the other speaker is saying and to start your answer before they finish the question. Unfortunately, when more than one person is speaking at once, it makes it harder for the court report to take down what you are saying. If you are participating remotely, the video conference software may even cut off one speaker to give focus to the other. That’s why you should always wait to be sure the attorney is done asking the question before you start to answer it.

This also gives your attorney an opportunity to raise any objections they may have to the question. In a divorce trial, objections can interrupt testimony and the judge may need to hear arguments from both lawyers before you are allowed to answer the question. There is no judge in a divorce deposition, but your attorney is still allowed to state their objections on the record, in case the question ends up being used later in court. So before you start your answer, take a beat and give your lawyer a chance to speak up. Then, when you’re sure everyone is done talking, start your answer.

Do Answer Directly and Honestly

When your spouse’s attorney is examining you, there will likely be some questions you won’t want to answer. No one’s marriage history is entirely clean, but that doesn’t mean you should lie or avoid answering the question. Don’t argue with the attorney, just answer their questions. If you don’t understand the question or don’t remember the answer, say so. Don’t make something up or guess at the best answer.

Be honest. If you lie during a deposition it can hurt your credibility at trial. If you do make a mistake, don’t worry about it. Just tell the attorney you need to correct or clarify something you said earlier and then testify truthfully.

Don’t Give Them More Than They Ask For

When a lawyer cross-examines a witness during a divorce deposition, they generally ask yes-or-no questions. They want to get you to agree or disagree with their statements. It can be tempting to try to provide an explanation or context for your answer. However, cross-examination is not the time for long-winded answers. In fact, providing lengthy answers to short questions can sometimes strengthen your spouse’s case against you! Keep your answers short, and trust that at trial your lawyer will give you the chance to explain anything that requires additional context or clarification.

Strategies to Fight Anxiety While Giving Deposition Testimony

Depositions are adversarial in nature and designed to make witnesses uncomfortable. So if you start to feel anxious while giving your deposition testimony, know that that is normal. Here are a few tips to reduce that anxiety and focus on giving the best answers to each question:

Be Prepared for a Long Day

Divorce depositions have a lot of ground to cover and can often take several hours. Be prepared to see it through. Clear your schedule, arrange for someone else to pick up the kids from school, and make sure you eat well before the deposition starts. If you are testifying remotely, have a bottle of water handy and take sips between questions to protect your voice. You may also want tissues at the ready, just in case.

Take Your Time Answering Questions – Even Easy Ones

When the questions get rolling, the fast pace of a deposition can quickly become overwhelming. But you have the power to slow things down. Don’t rush to answer the attorney’s questions. Take a breath, count to three, or repeat the question in your mind before answering out loud. If you do this even with the easy questions – like your address or your current employment – it will set the pace and make it easier to take your time when the attorney asks you something hard.

Take Breaks – But Not Before Answering Hard Questions

You are allowed to ask for a break at any time, whether you need to use the restroom, or just regroup and take a hold of your emotions. However, you shouldn’t abuse this privilege. Asking for breaks constantly will only prolong your deposition and cause the attorney to repeat themselves as they find their place after each interruption.

Always answer the last question asked (even if it is a hard one) before asking for a break. The one exception is that you may ask to talk to your lawyer briefly if you are worried you are about to say something that will incriminate yourself in a crime (“pleading the Fifth Amendment”). If that happens, be sure to have that conversation out of earshot of the other attorney and the court reporter to avoid your private attorney-client communications from becoming part of the record.

Get Support from an Experienced Family Law Attorney Ahead of Your Divorce Deposition

At the Law Office of Shelly M. Ingram, our divorce attorneys know how stressful a divorce deposition can be. We are here to help you prepare, and to guide you through the process of offering honest testimony, both in the initial deposition, and at trial. Our team can help you with technical questions for your video deposition, and will assist you by running practice sessions to familiarize you with what will happen the day of your deposition. You don’t have to go through your divorce alone. We will help you through the process. Contact us today or call (301) 658-7354 to schedule a consultation with an attorney.