Depositions in a divorce case explained!

If you find yourself in the beginning phase of the divorce process, you’re about to go through the “discovery” process, also known as the information-gathering phase. Discovery takes place regardless of mediation, collaborative, or a litigated divorce. This phase is almost always necessary, even if you and your spouse agree on the particulars of how to divide the assets.

There are a few phases in discovery; the paper exchange, which is the gathering of financial statements, mortgage statements, tax returns, etc. Then if needed, depositions. Depositions occur after the paper phase and after the financials are received. You want to exchange documents, bank statements, credit card statements, and tax returns before a deposition. This way you can be specific and pinpoint the deposition.

Depositions can be incredibly useful in any divorce case; however, they are the most helpful when one spouse believes the other has something to hide. Depositions provide both the client and their attorney the ability to ask key questions before the trial even begins and gain a better understanding of the party’s anticipated testimony. They could provide crucial information to help prepare for the trial or even begin the process of a divorce settlement.

Since depositions are expensive, the decision to have them take place is done once the bulk of discovery has been completed, which is weighed by the cost of the deposition worth the information you will receive from it. The information gathered during discovery will determine how you may settle your divorce case.

Benefits of a deposition

Depositions are opportunities to:

  • Learn, ask questions, get more information, and ask specific questions about something in the documents that were provided during discovery and a great opportunity to settle a case.
  • Gives someone a preview of what the case will look like if the case is not settled.

What to expect in a deposition

Depositions are discovery mechanisms for an attorney to ask questions to the opposing side. Attorneys can show the individual documents and ask specific questions regarding them.

  • There is no judge, no jury.
  • They often take place in a setting such as a conference room, which feels less formal.
  • The individual being deposed swears under oath, testimony is just as serious as if you were in a courtroom.
  • Your sworn testimony can be used at a later date in court should your case go to litigation.
  • Your attorney can refer to the deposition transcript to impeach someone’s credibility in a trial should their testimony in court contradict the deposition. Attorneys take depositions to discover what a witness will say at trial and to preserve that trial testimony. It basically, locks someone into their story/answers, which allows your attorney to inform the judge that the story or narrative being told in court is not accurate.
  • Deposing an individual allows your attorney to learn more about the opposing side and gauge their likeability and how they think a judge will perceive their credibility. It’s a very good insight into what your attorney can expect in a trial.

Questions & preparation are vital

If one thing is said in a deposition, and then another thing in courtroom testimony it will backfire on you.

  • Preparation for deposition should begin 4-6 weeks prior.
  • Who’s going to be in the room? A court reporter, your ex is allowed to be there with their attorney, your attorney, and a notary to swear you in.
  • Although there is no judge, objections in a deposition can be made. In many states, they are limited to two types of objections: the form of a question and a question that violates client/attorney privilege.

Top tips for preparing for a deposition

  • Don’t lie! If one story is said in the deposition, and then you say another in courtroom testimony, it will backfire on you.
  • Pause and think BEFORE answering. Take a deep breath, pause and then give your answer. This not only makes you think about your response but also gives you control over the pace of the deposition.
  • Never divulge more information than what was asked. Listen very carefully to the question, was it a “yes” or “no” answer? Don’t expand on your answers with stories and descriptions.
  • When answering, pretend as if there is a judge in the room and that he/she will be reading the transcript.
  • Make sure your attorney knows about any skeletons in your closet that may come up in a deposition. You don’t want your attorney caught off guard and you’ll be better prepared to address this if you should need to.
  • Never be aggressive and argumentative. This is not the time nor place to duke it out with your ex. It’s to discover information!


You can easily see why the discovery process is so important when you go through a divorce. Without all the information, it would be impossible for the divorce to be fair to both of you. The amount of evidence needed for the discovery process seems overwhelming, but there are limits to how much the opposing side can ask for, if the requests are considered harsh or unfair, you do have the right to complain. Remember, although depositions can become emotional and stressful, having an idea of what to expect can reduce or eliminate your anxiety.