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Divorce Truths - What to Expect on Cross-Examination

At the conclusion of the direct examination by your attorney (where you have testified to your side of your case), opposing counsel has the right to ask you questions about your testimony.

This is cross-examination. The purpose of cross-examination is to support your spouses' version of the facts and/or to discredit your testimony. This may be accomplished many ways, including trying to establish bias, incapacity or lack of knowledge, lack of opportunity to observe facts, and prior inconsistent statements. This is not exhaustive.

Where Are My Weaknesses?

Ask your attorney if they have experience with the opposing counsel and to further educate you on what to expect. As stated previously, attorneys will attack weaknesses. Your attorney should prepare you for what they consider the biggest areas the cross-examination will center on. If there are skeletons in your closet, the opposing side will bring them out.

Questions Favorable to Spouse

If you have testified to something that is favorable to your spouse, you may be asked a question about this first. This will emphasize the positive testimony about your spouse.

Any Questionable Testimony

Then opposing counsel will try to prove everything else you said is untrue or questionable, or that you really didn't have the opportunity to observe the facts to make the conclusion.

Don't Volunteer Information

Your attorney has told you not to volunteer any information, and to answer only the question you are asked. It is not your job to assist your spouse's attorney in giving them additional information they will use against you at the first opportunity. Attorneys are masters at manipulation. Don't let the opposing attorney put words in your mouth.

Cross-examination is usually permitted about any subject relevant and material to the issues. As a practical matter, the questions the opposing attorney asks are usually in response to the answers you have given during your direct examination.

Cross-Examination is Conducted by Asking Leading Questions

Most attorneys are forceful in their cross-examinations. Some of this is because their client expects it. Some of it is for harassment to upset you so you lose your confidence. Initially, some attorneys appear friendly. Don't be lulled into believing they are there for any reason other than representing your spouse.

Yes or No

The opposing attorney will also attempt to tell your spouse's side of the divorce by the way in which they ask you questions.

Textbook cross examination is the opposing attorney's chance to ask you questions by stating their theories to you in the form of questions. Therefore, their cross-examination questions are framed as assertions. They are not really questions they are seeking answer to. They don't want an answer- at least not your answer. They are usually short statements because long ones give you an opportunity to argue an answer. By asking leading questions, you cannot come up with your own answer because they have given you the answer they want to hear. This is done by asking questions which require only yes or no answers. Do not be surprised if you are not asked your opinion or interpretation or evaluation on anything.

Cross-examination also capitalizes on the stress of the trial. The attorney is looking for any biased testimony. Any animosity or motive that you might have for not telling the truth or lack of supporting information is fair game. Any inconsistency, regardless of how minor.

Fading Memory

Memory fades with time and the longer it is between the event and the time of the trial, the more you can expect this fact to be brought to the court's attention. This obviously would suggest other possibilities less favorable to you, and more favorable to your spouse.

Sample Cross-Examination Questions

Leading questions demand a controlled answer.

  • You would agree that your husband is a good father?
  • You can't say that for sure because you weren't there?
  • That was almost a year ago, and you surely aren't telling this Court that you remember every detail?
  • You left out that your spouse paid for all activities of the children?
  • You didn't tell the judge your spouse bought you that car?
  • You didn't list your part-time income of $12,000?

Good attorneys will string together negative statements to paint a biased picture against you.

Cross-examination uses closed-ended questions (It's red, isn't it?), rather than open-ended (What color is the rose?).

Cross-examination questions may center on positive traits of your spouse.

  • Your husband takes the children to soccer every weekend?
  • In fact, your spouse takes the children to all sports activities?
  • Your spouse works two jobs to help maintain the family's lifestyle?

Questions may center on negative traits about you.

  • You were out so late with friends last weekend that you didn't feed the children dinner?
  • You sent the kids to bed early so you could be alone with your new male (or female) friend?
  • You don't help the children with their homework?

Questions may fill in information that is favorable to your spouse that you have omitted from your testimony.

  • You testified you never had access to any money, yet you keep the checkbook?
  • You testified your spouse charged a lot of debt, but he isn't an authorized account user on the credit cards?
  • You testified you can never leave the house, yet your husband leaves a brand new car at home and you have a set of keys?

There are countless ways your spouse's attorney will try to accomplish their goals. It's a little game carefully controlled to make you look bad. The more the opposing attorney knows about the case, the more questions they will ask. The more experienced they are, the better their questions will be.

Objections by Your Attorney

Answer every question unless your attorney objects. Don't immediately jump into an answer. Give your attorney a few seconds to allow him time to object, if he chooses.

Below are examples of some objections that your attorney can make. This list is not exhaustive. It will give you an idea of what's happening when you hear your attorney rise to their feet and say the following:

I object your honor. That question is--

Incompetent; irrelevant; immaterial; leading and suggestive; calls for a conclusion; asked and answered; misquotes a witness; calls for speculation; argumentative; assuming facts not in evidence; lacks a proper foundation; lacks first-hand knowledge; is a compound question; not the best evidence; beyond the scope; complex question; unintelligible; calls for opinion by an expert; no proper foundation; calls for privileged communication; cumulative; self-serving; hearsay.

As a practical matter, some judges may become annoyed if there are too many objections because it interferes with the flow of the case. As indicated previously, there is a constant unspoken pressure to keep the case moving. An experienced attorney will not make every objection available to them, but only object to those questions they believe are damaging to your case. This experience is part of what you are paying for.

Wait for the Judge to Rule on Your Attorney's Objections

Once your attorney makes an objection, wait until the judge rules on the objection before answering. The judge will instruct you on whether or not to answer. You may not have to give an answer.

All is Not Lost

After cross-examination is concluded, your attorney has the opportunity to conduct a redirect examination. They can ask you additional questions, and clear up any discrepancies. They can have you offer any explanations they believe are relevant. This is an opportunity for you to explain a damaging answer, if needed.

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