Do I Need a Subpoena in My California Divorce?

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Sometimes in a divorce case, a person must prove something about the other party. Sometimes, this evidence cannot be gathered absent a subpoena because of confidentiality or not wanting to be involved and release the information voluntarily. Spouses going through divorce may want to consider the role of subpoenas.

What Is a Subpoena?

A subpoena is a legal instruction authorized by the court that requires someone to produce evidence or to testify at a trial or deposition. It is issued by a lawyer involved in the case. The subpoena includes information about what information is being requested and when it must be produced. If a person ignores the instructions in a subpoena, the court can step in and sanction the noncompliant individual. A person may be able to challenge a subpoena for legally-valid reasons, but he or she must promptly and properly make these arguments. For example, a person may claim privilege, such as doctor-patient privilege. If the party requesting records is self-represented, the court of the clerk issues the subpoena.

Reasons for Subpoenas

Many reasons for subpoenas involved in divorces are based on the division of the spouseís assets and debts, child support and spousal support. They may need financial records to fairly divide their assets or to discover if the other spouse is hiding assets. A party may need employment records to establish whether the other party is working. He or she may request information about certain property the spouse owns but has filed to disclose on their Schedule of Assets and Debts or Property Declaration. He or she may want to establish that the spouse earns more than what he or she is actually claiming. He or she may request medical records to establish that a spouse is not disabled or unable to work as he or she claimed.

Different Types of Subpoenas

There are different types of subpoenas, depending on a personís needs. A subpoena may require a witness to go to court for a hearing in order to testify. For example, a spouse may subpoena a witness whom he or she believes is employing the spouse. He or she may subpoena a family member or friend who is hiding an asset. He or she may subpoena a school principal to testify about the childís education or disciplinary problems. This type of subpoena is helpful when a lawyer needs to ask detailed questions of the witness, such as his or her work schedule, length of employment, hours of work, rate of pay, bonuses, commissions or other information relevant to this line of questioning.

Another type of subpoena requests that a person provide certain documents or other evidence. For example, the person may ask for financial records, employment records, medical records or other documents. They may also ask for video recordings, audio recordings, pictures or other documents. Sometimes this type of subpoena is combined with a personal appearance subpoena, in which case the witness would have to bring the required evidence as well as testify at the hearing.

Another form of subpoena is a subpoena that requires a witness to be available for a deposition. This is a meeting in which a person is asked to testify under oath while his or her answers are recorded.

Advantages of Subpoenas

Subpoenas allow parties in litigation to get important information and documentation about their case. For example, subpoenas may be used to request bank records, credit card statements, police records and records for investment accounts.

These records may be helpful in establishing that a party is underreporting his or her income or hiding information. If the party requesting this information can establish that the other party is lying, he or she may be able to impose sanctions against the other spouse. Additionally, the judge may not believe other assertions made by the party once the lies have been exposed.
When business records are requested, the business must have a custodian of records certify that the records are accurate and complete. This helps establish the authenticity of the records and avoids challenges based on hearsay arguments. Certified records are an exception to the hearsay rule and are generally admissible.

Contact a Lawyer for Assistance

Individuals going through a divorce should discuss with their lawyer whether a subpoena will be necessary and what advantages it may bring. These are not necessary in every divorce case, but they often make a difference in cases that do require them. A lawyer can explain whether a subpoena may be helpful in your individual case.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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