Posted on March 11, 2023

How To Depose Your Spouse In An Illinois Divorce

The divorce process is a massive buildup. You file a petition for dissolution of marriage, you exchange discovery, you participate in pretrials, you finally either settle all issues or take the matter to trial.

During the entire divorce process, your soon-to-be-ex-spouse is your opponent. If only there was a way to know what your divorce opponent was thinking during the machinations of your divorce.

Actually, there is a way to determine what your spouse is thinking, planning and even what they will testify to at the eventual divorce trial…you can just ask them.

During the course of an Illinois divorce you can request to question your spouse at any time in a deposition.

A deposition is “a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.” Black’s Law Dictionary (11th ed. 2019)

“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202

There are two kinds of depositions: discovery depositions and evidence depositions.

“The purpose of a discovery deposition is to explore the facts of the case, and for this reason wide latitude is given in the scope and manner of questioning. In contrast, an evidentiary deposition is generally used for the purpose of preserving testimony for trial, and questioning is therefore limited by the rules of evidence.” In re Estate of Rennick, 692 NE 2d 1150 – Ill: Supreme Court 1998

Evidence depositions are really for putting someone on the record in a quasi-trial because they might not be available at trial (i.e. they’d be dead or out of the country).

In a divorce case, a spouse will almost always be deposed as a discovery deposition.

“The deponent in a discovery deposition may be examined regarding any matter subject to discovery under these rules. The deponent may be questioned by any party as if under cross-examination.” Ill. Sup. Ct. R. 206(c)(1). (emphasis mine)

Depositions can involve “any subject matter”! You can ask your spouse anything. (I’ll address when depositions go too far later in the article.) So, what should you ask your spouse during their deposition?

What To Ask Your Spouse During A Divorce Deposition In Illinois

Because the possible questions in a deposition are potentially limitless, the initial question is “where do I even start?”

I would recommend perusing “Family Law Depositions: 2nd Edition” by John Nichols and Joe Phillips.

Mr. Nichols and Mr. Phillips have included generalized versions of hundreds of divorce related depositions on subjects ranging from adultery to invasion of privacy. In that book, you’ll find lots of inspiration for your upcoming deposition…and, hopefully, deflate the stress of questioning your spouse under oath.

But, you cannot cut and paste Mr. Nichol’s and Mr. Phillip’s depositions hoping it will work for your spouse’s deposition. Instead, you should customize your deposition questions as I outline below.

I attended the National Institute for Trial Advocacy’s (NITA) deposition training course in March of 2023. I was the only divorce lawyer there…but I learned a lot.

Nita advocates a theory of conducting depositions called “The Funnel Technique.” The funnel technique is a strategy to organize your deposition questions to maximize the gathering of information and, possibly, extract damaging admissions from your opponent.

The theory of the deposition funnel technique is to ask extremely broad questions which eventually get narrowed down into an answer that you (probably) want.

The broad questions need to be organized by topic. In an Illinois divorce case, the topics are easy…they are the sections of the Illinois Marriage and Dissolution of Marriage Act.

The Illinois Marriage and Dissolution of Marriage Act divides almost every aspect of a divorce into different chapters. These are your deposition funnel technique topics.

750 ILCS 5/501: Temporary Relief

750 ILCS 5/502: Agreement

750 ILCS 5/503: Disposition of property and debts

750 ILCS 5/504: Maintenance

750 ILCS 5/505: Child support; contempt; penalties

750 ILCS 5/506: Representation of child

750 ILCS 5/508: Attorney’s fees; client’s rights and responsibilities respecting fees and costs

750 ILCS 5/510: Modification and termination of provisions for maintenance, support, educational expenses, and property disposition.

750 ILCS 5/513: Educational expenses for a non-minor child.

750 ILCS 5/513.5: Support for a non-minor child with a disability.

Virtually every one of these sections directs the court to consider various factors. “The court shall…consider[]… all relevant factors, including:” 750 ILCS 5/503(d), 750 ILCS 5/504(a), 750 ILCS 5/505(a)(2), 750 ILCS 5/510(a-5)

These statutory factors are the questions for your topics!

For example, the “standard of living” is a factor in temporary motion, maintenance (formerly known as alimony), child support, college expenses and support for a disabled child.

You simply ask 6 broad questions about the standard of living to your spouse?

“What was your standard of living during your marriage?”

“When did you enjoy that standard of living?”

“Where did you live when you had that standard of living?”

“Why did you have that standard of living?”

“How did you achieve that standard of living?”

“Who provided for the standard of living”

It is just who, what, when, where, why and how for every factor! (Except who always comes last because in a divorce “who” is almost always a rhetorical question).

That is the top of the funnel! Now we narrow the funnel in the first stage by filling in what you know about the topic and verifying. Again, be broad the specific questions come later.

“You had two luxury cars?”

“Those cars were bought in 2019?”

“You had the cars shipped back and forth from Illinois and Florida?”

“Having a nice car is important to you?”

“Where did the money come from to purchase those cars?”

Now, you can extrapolate and make logical connections based on what you asked. These questions always begin with a “So”.

“So, because you worked hard, you deserved to drive a luxury car?”

“So, because your spouse was with you when you worked hard, you got her a luxury car, too?”

Next, you eliminate any other alternate realities by asking questions that must be answered with a “no.”

“When shopping for cars, did you go to any used car lots?”

“You did NOT consider buying a used car in 2019?”

“You did NOT buy any other people a luxury car in 2019? The only cars you bought were for you and your wife?”

Next, you restate the facts as the deponent told them you in order to confirm you got it right?

“You worked hard in 2019. You bought yourself and your wife two luxury automobiles. You did NOT even consider a used or lower model car? Is that correct.”

Now, you can finally ask a question to get an admission of a party.

“Owning a luxury automobile is part of the standard of living for you and your wife, isn’t it?”

If they say “yes” then the factor is solidified in black and white…coming from the deponent’s own sworn testimony. The deponent now must repeat the same phrase to the divorce judge if asked at trial (or be impeached).

If they say “no” then you can go over all the other questions they answered that confirm or imply your gotcha question. They will either eventually say yes…or look like an idiot and/or a liar.

Either way…you are really preparing your cross-examination at trial. Depositions are a great dry run for the eventual cross-examination.

“The deponent may be questioned by any party as if under crossexamination.” Ill. Sup. Ct. R. 206(c)(1)

Every topic should have a final, ideal question that the other questions lead to. The topic helps you learn. The final, ideal question makes your point. All you need is a topic and a final, ideal question. You can fill in the blanks in between using the funnel method.

In between all of this, you can show your spouse the exhibits you intend to use. In the process you can verify their admissibility for a later request to admit.

Objections From Your Spouse’s Counsel In An Illinois Divorce Deposition

If your deposition is going really well, your spouse’s attorney will try to trip you up by objecting.

Objections are barely allowed during discovery depositions, however.

The only real objection in a discovery deposition is the question relates to privileged information.

“When information or documents are withheld from disclosure or discovery on a claim that they are privileged pursuant to a common law or statutory privilege, any such claim shall be made expressly and shall be supported by a description of the nature of the documents, communications or things not produced or disclosed and the exact privilege which is being claimed.” Ill. Sup. Ct. R. 201(n)

Other than objecting for privilege, the only thing an attorney defending a deposition can do is ask that the question be restated for clarity.

Just comply with objections related to form of the questions. “You want more questions directed towards your client? Don’t mind if I do!”

If the deposition defending attorney insists on telling his or her client to refuse to answer the question…he or she can.

If the deponent’s attorney has “objections to the questioning during the deposition, he should state, “I’m not allowing my client to answer…” and certify the question to the circuit court.” Badea v. Phillips, 906 NE 2d 615 – Ill: Appellate Court, 1st Dist., 1st Div. 2009

A certified question is “a point of law on which [a litigant] seeks guidance from [a court].” Black’s Law Dictionary (11th ed. 2019)

The question can later be brought before the court to determine if the question should, in fact, be answered.

An objection does not stop the deposition. “If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer.” Ill. Sup. Ct. R. 219(a)

The only thing that does stop a deposition is if the attorney defending the deposition deems the line of questioning to be harassing.

“At any time during the taking of the deposition, on motion of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in any manner that unreasonably annoys, embarrasses, or oppresses the deponent or party, the court may order that the examination cease forthwith or may limit the scope and manner of taking the examination as provided by these rules. An examination terminated by the order shall be resumed only upon further order of the court. Upon the demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to present a motion for an order.” Ill. Sup. Ct. R. 206

Depositions are not nice. They are a series of pointed questions…where the answers are eventually bad for the deponent. If an attorney defending a deposition deems the deposition to be “embarrassing,” immediately suggest that the deposition be covered by a protective order. After all, the questions and answers cannot be embarrassing if they are a secret.

How To Use Your Spouse’s Deposition Transcript In An Illinois Divorce

A divorce judge is not supposed to hear the contents of a discovery deposition because judges are supposed to use the Rules of Evidence.

“[B]y order of the Illinois Supreme Court, the Illinois Rules of Evidence will govern proceedings in the courts of Illinois” Ill. R. Evid. Preamble

The rules of evidence don’t apply in a discovery deposition. There are no objections for foundation, relevance, hearsay, etc. in a discovery deposition.

When deposing a spouse in an Illinois divorce, you are deposing a party opponent. Statements from an opposing party will be allowed into evidence“[t]he statement is offered against a party and is (A) the party’s own statement” Ill. R. Evid. 801(d)(2)

Everything a spouse said in a deposition can be presumed admissible and is, therefor, disclosable to the court.

“Statements of a party made during a deposition are admissible as an exception to the rule excluding hearsay when introduced by a party opponent. For this reason, a party and his or her attorney know at the time of the party’s deposition that any statement made could be used as an admission. The evidentiary rules that limit the use of a nonparty witness’ deposition testimony simply do not apply to a party deponent.” In re Estate of Rennick, 692 NE 2d 1150 – Ill: Supreme Court 1998

Your pretrial memo should be ripe with your spouse’s admissions as quoted from the deposition transcript.

A judge will likely make strong recommendations based on those admissions. If either party doesn’t accept the judge’s recommendations…you are off to trial.

Using The Deposition Transcript At Trial

Beyond asking your spouse the same questions you asked at the deposition. You can use the deposition transcript to impeach your spouse at trial should they contradict their previous answers.

“Discovery depositions taken under the provisions of this rule may be used only: for the purpose of impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness” Ill. Sup. Ct. R. 212(a)(1)

Your marriage started with a question, “Will you marry me?” Likewise, your marriage may end with a barrage of questions…at a deposition. If you would like to learn more about how to properly prosecute your divorce using all the discovery techniques available, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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