A deposition is part of the discovery process in a custody trial.  Your spouse’s lawyer gets to ask you a lot of questions, some rude or embarrassing, at his or her office, in front of a stenographer who is taking everything down to be used against you at trial.  You are in the hot seat and it may take all day.

The lawyer has usually done this hundreds of times and knows a lot of tricks, trips and traps.  And the lawyer gets to ask the questions.  You have to answer them.

Here is the number one thing I tell my clients before their deposition.  Repeat the question in the form of a declaration, pause, and finish the sentence.  Put a period at the end of it and then stop talking.  Wait for the next question.

So the lawyer asks, “Where were you on the night of August the 7th of this year?”

You say, “On August the 7th of this year…I was at work.”

This approach has several benefits.  It gives you time to think.  It keeps you focused on the question asked.  It keeps you from talking too much.  It keeps you from guessing.  It keeps you calm.  And it might keep you from saying something that can be used against you at trial.

Percent of custody cases that go to trial (5 percent)

Ratio of divorce cases where mom ends up with primary physical custody (5 out of 6)

Ratio of divorces where parties agree to joint physical custody (5 percent)

Noncustodial dads who see their children at least once a week (31 percent)

Percent of sole physical custodians who are men (7 percent)

Source:  “Not Your Dad’s Divorce”, Newsweek

1.  You Might Lose. Half of the people that go to court lose.  In every case, there is a winner and a loser.  And even if you win, you may lose, because of attorney fees and other costs, like the lasting acrimony and damage that a trial can cause.

2.  Trials Are Expensive. Trials involve enormous expense, time and uncertainty.  You have to take time off from work.  Lawyers and expert witnesses may cost thousands of dollars.  You are spending your kid’s college money.

3.  Lawyer Time is Not the Same as Real People Time. The system is slow.  It takes a long time to get to trial and the judges do not always rule at the end of the case.  They may take a case under advisement at the end of the trial, which means they want to think about it.  Then you may not get the result for weeks or months.  And then there are the appeals.

4.  Judges Are Not Trained for This. Psychologists, psychiatrists and social workers are trained in human behavior.  Many mental health professionals have expertise in custody evaluations.  Judges on the other hand are lawyers.

5.  Decisions Are Being Made by a Stranger. Judges are strangers to your life and marriage and they are called upon to make a decision after hearing only a few hours or a few days of testimony about a marriage that may have lasted for years.

6.  There Is No Lie Detector at the Bench. There is no truth detector at the judge’s bench.  The courthouse is not a fairness store.  It is a decision store.  One party wins and one party loses.  Judges are only human, they are not perfect, and the winning party is not always the deserving party.

7.  Judges Are Limited in What They Can Do. They are also limited by the legislature in how they must rule.  Private agreements between the parties are not.  You can be much more creative than the judge can.

8.  Judges Are Not Perfect. Judges are only human and they make mistakes.  We pay them to make decisions, and resolve disputes, not to be all knowing.  Sometimes they make the wrong decisions.  Do not think because you are right, that you will win.

9.  Even When You Win, You Lose. Custody trials can be very destructive to relationships.  Children are put in the middle. After the trial, you still have years to raise children with the mother.  You may have won the battle but lost the war.

While many clients think the trial resolves everything, most lawyers know that is not the case.  If the mother of your children was difficult before the trial, the trial is not going to make her into a different person.   She will still be difficult, you will have disputes regarding the children and you will need to resolve them somehow.

The court has the power to enforce its orders or the agreement of the parties.  So the court can order a mother to allow visitation or can order a father to pay child support.  However, the court will only do this if one of the parties asks it to do so by filing a petition.  The other party will then have an opportunity to respond and a hearing to present their side to the judge.

It is always better to resolve disputes yourselves if possible.   If you have a settlement agreement, you can include a provision that disputes will be submitted to mediation before taking the other party back to court.

You can also include a Parenting Coordinator in an agreement.  This would be someone that the parties can take their disputes to and let them make a decision.  This is less costly and time consuming than litigation.

If you cannot resolve your dispute through one of these methods, then you must go back to court and ask the judge to decide.  In some cases, it may be like trying your case all over again.  In addition to resolving post-trial disputes, the court has the power to modify legal custody, physical custody, timesharing and child support after the trial, if circumstances change and the modification would be in the best interests of the child.