Divorce depositions in California are less common than you think. There are two reasons for that. First, depositions can get expensive. It’s not just lawyer’s fees but also the court reporter who often charges per page to create the transcript and charges for the original and certified copies. Second, divorce depositions are often unnecessary (or overkill) in cases that are not complex or do not have many contested issues and there are more cost-effective ways to get answers to questions such as interrogatories.
Are depositions in California divorces helpful? Yes, assuming the divorce lawyer taking it is experienced and prepared. We have seen lawyers waste so much time and money spinning their own wheels and wasting their client’s money (and that of their spouse) in depositions. They ask irrelevant questions, focus on issues that are of little consequence to the divorce or, when they finally get to an issue that matters, butcher the questions so very little valuable information is obtained.
Sometimes, it’s just a lack of experience in taking depositions. Other times, there is a more sinister motivation – churning a file to unnecessarily increase the attorney fees. We have also seen divorce depositions used to harass or intimidate.
So what can you expect in a divorce deposition in California? Let’s go through the basics. Nothing in this article is legal advice. Advice only comes through an in person consultation with and retention of an experienced family law attorney.
California divorce deposition notice and objections
There are “party” depositions and “witness” depositions. A party is someone who is either the petition, respondent or was joined in the divorce case. A husband or wife is a good example of a party. Party divorce depositions in California are “noticed” by a formal written request from one lawyer to the other. A self represented person can also notice a deposition but that is pretty unusual.
A California divorce deposition notice may also include a request to produce documents at the deposition. Just like any other production demand, the receiving lawyer has the option of serving an objection to the demand within a certain, specific timeline allowed by the California Code of Civil Procedure.
A divorce deposition isn’t always of a husband or wife. A witness can also be deposed. Witnesses are usually served by a deposition subpoena. That subpoena can also include a request to produce documents.
What to expect during the divorce deposition
If your lawyer is taking the deposition, it’s usually a good idea to be present. You can help your lawyer in both the preparation phase and provide your lawyer with notes of issues that may come up during the deposition – like your spouse lying.
If you are the one whose deposition is being taken, plan to sit back and answer a lot of questions.
Depositions are usually taken in a conference room or office of the lawyer who noticed it. There is a court reporter present who gives the deponent the oath – it is akin to “do you swear or affirm that everything you state will be the truth, the whole truth and nothing but the truth.” That same court reporter takes down everything that is said on the record during the divorce deposition.
Depositions do involve breaks, including a lunch break if it starts in the morning and goes into the afternoon. During these breaks a spouse can chat with his or her lawyer.
How long can a divorce deposition in California last?
The divorce deposition rules changed in 2013 about this issue. California Code of Civil Procedure 2025.290 states, in part:
…a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination…
That is not the entire rule and there are a lot of exceptions to the 7 hour rule.
Divorce deposition rules
Lawyers state divorce deposition rules in different ways. The most common rules are:
- Tell the truth because failing to do so is serious. Some lawyers remind the deponent that perjury can be a felony in the State of California.
- If you don’t understand a question, state that because if you answered it, it is assumed your understood it
- The difference between an estimate and a guess and to never guess
- There will be an opportunity to review the deposition transcript once it is done and make changes but significant changes can affect the deponent’s credibility.
- Wait until a question is asked before answering it and avoid talking over each other.
There are more than these but you probably get the general idea by now.
Divorce deposition questions and checklist
I could write a book on California divorce depositions, preparation for them, the types of questions to ask, how to ask them and how to catch a spouse in lies. Since we don’t have that kind of time, here are what I consider to be the top 5 things to remember:
- Preparation for the deposition is just as important as the deposition itself. That starts with creating an outline of the issues and crafting specific questions on each issue
- Having documents (exhibits) for the deposition ready to go, organized and questions about them in the outline. A common rookie mistake is taking a deposition before having the documents you need to make the deposition effective.
- Focus on the spouse’s answers during the deposition. A spouse being deposed often gives you gems of information that will help the attorney taking the deposition and his or her case but attorneys are so focused on their questions that they forget to listen to the answer.
- Stay out of arguments. Time is money and it is valuable. Some lawyers love to get the deposing attorney off balance by arguing with him or her about the questions or answers. We have a great way of shutting such lawyers up…but that little secret won’t be given here.
- Protect the record – that transcript is everything. Make sure people are not talking over each other and be vigilant to make sure you get clear and audible responses to every question.
Divorce deposition objections
Objections may be served to the actual deposition notice or a request to produce documents for a lot of reasons. But objections can also be made to questions during the deposition. It is beyond the scope of this article to go over the type of proper and improper objections that are most common. This is one area where the divorce lawyer’s experience is critical.
Divorce tips when taking a deposition in California
We have give you the top five most important tips in our opinion, above. But those are for your lawyer. What about you? Here are three more:
- Make sure you meet with your lawyer well before the deposition to help him or her prepare. Your lawyer should contact you to set this up. If you have to take the initiative, then your lawyer may need to pay better attention to the case. This doesn’t have to be an in person meeting. Some lawyers know the case very well and just need to go over the deposition by phone or get some additional information by email.
- You should be present unless your presence won’t be helpful or cause unnecessary distractions. I have rarely if ever had such a situation. Pretty much without exception, I like my client at the deposition when I take it.
- Focus on the process, not your spouse. Divorce depositions aren’t about revenge, intimidation or any other emotional baggage. They are about fact gathering that will move the case forward toward resolution or a trial.
Divorce tips when defending a deposition in California
What are some divorce tips if you are the one whose divorce deposition is being taken? Here are three of many.
- Be prepared. If you are walking into the deposition cold and haven’t gone over it with your lawyer, something may have been missed. Again, this depends on how complex your case may be. The more complex the case and issues, the more necessary (and more detailed) the preparation must be.
- Answer questions asked and stay away from argument. This should be self-evident but it rarely is and a lot of this can be avoided by good preparation.
- Take your time answering questions. It’s not a race. You are not on the clock. There is nobody cracking a whip behind you. Listen to the question. Pause. Make sure your understand it fully. If you don’t, say so. If you do, then you can answer it. Along with this comes paying attention to your lawyer’s objections. Don’t rush to answer a question if your lawyer objects. Who knows, your lawyer may request the question be rephrased even if you thought you understood it but the question has a problem as to form or substance.
What is the best tip for divorce depositions in California?
Make sure you have an intelligent, experienced and skilled divorce attorney on your side. We hope you enjoyed this article.
For some additional reading, check out our articles on the following:
- Expectations in a divorce – What can you or should you expect in a California divorce case? This article gets you off to a good start in answering this question.
- Divorce attorney’s fees in California – Under what circumstances can the court order attorney fees? Some of it may surprise you.
- Divorce advice for high net worth individuals – this article goes into important tips for high net worth individuals who may go through or are going through a divorce.