Subpoenaing Witnesses for a Divorce Trial
By Beverly Bird
A successful divorce trial is the result of gathering and documenting information. If you and your spouse cannot reach a settlement and a trial becomes inevitable, you will probably want to seek the assistance of an attorney, rather than proceed on your own. Your attorney will first attempt to identify facts that will support your case through discovery methods. These might include issuing interrogatories, which are written questions your spouse must answer under oath. Then your attorney must bring these facts to the attention of the judge. One way to accomplish the latter is to subpoena the person who holds the information, legally obligating them to give testimony.
Types of Subpoenas
A subpoena ad testificandum obligates someone to verbally state what he knows under oath. This is appropriate for use if your attorney wants someone to testify for you at trial. However, if that person might do you more harm than good, your lawyer might elect to use a subpoena duces tecum instead. This is a demand for documentation the witness has in her possession. For example, if your spouse tried to conceal an asset by transferring ownership to his sister, his sister probably would not be a good oral witness for you; she’s on her brother’s side. Your attorney can issue her a subpoena duces tecum instead, requiring her to produce the documents showing the transfer. He can then use them as an exhibit at trial.
Types of Witnesses
Your witnesses may have observed behavior on the part of your spouse of which your lawyer wants the judge to know, or your witnesses may be experts. For example, if custody is in dispute, your lawyer might want to subpoena your child’s teacher to testify that your spouse showed up two hours late to pick her up from school. He might also want to subpoena a child psychologist to testify about the impact such an event would have on your child. Expert witnesses have trained knowledge, so they can state their opinions on the record.
While your divorce litigation is active, your attorney has the right to subpoena anyone who has information that might be pertinent. If he is issuing a subpoena to someone who is with a large financial institution, these companies sometimes have their own requirements for service. Service requirements can vary by state as well. Usually, your attorney will hire someone to hand-deliver the subpoena, or he will send it by certified mail.
You cannot ask your attorney to serve a subpoena on someone the day before your trial. In most states, the law requires litigants to complete the discovery process at least a month before the trial date. Your spouse's attorney must have a list of the witnesses you’re going to call so he has time to interview them before trial if he elects to do so. Your attorney will also want to meet extensively with your witnesses to prepare them for trial and the questions your spouse's attorney will most likely ask.
A subpoena legally requires a witness to appear at trial and to answer questions. It cannot really force her to say something she does not want to say. If you and your attorney try to force someone to testify against her will by issuing her a subpoena, she can simply tell him under oath that she doesn’t recall an incident about which she's questioned. She might be vague or put a spin on information that might actually hurt you. Before he begins subpoenaing witnesses, your attorney will want to make sure the individuals you're suggesting can help you. Witnesses, who obviously want to support you, such as your family members, are less useful in court than impartial third parties.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.