Subpoena Procedure Rules in Family Law
By Beverly Bird
John Foxx/Stockbyte/Getty Images
A contested divorce begins as a fact-finding mission, something like a scavenger hunt with a great deal at stake. You can't agree on how to divide investment and other financial accounts with your spouse – nor can the court do so at trial – if you don't know the value of these assets. In family law, subpoenas take two forms. A subpoena duces tecum requests documents from a third party. A subpoena ad testificandum requires a third party to appear, usually at trial or a deposition, to give testimony. Both can be useful in establishing the facts of your divorce case before you settle or go to trial.
The issuance of a subpoena depends somewhat on state law, so if you're acting as your own attorney, contact the court to find out the rules in your jurisdiction. Lawyers can typically issue subpoenas without court oversight, but if you’re handling your divorce pro se, without representation, you may have to arrange to have the clerk of the court send yours out. Some states require that even if you can issue subpoenas yourself, you must file copies of them with the court.
Service of Process
Even if your state allows you to issue subpoenas yourself, it's generally not enough to drop a copy of your completed form in the mail. You must usually arrange to have a private process server or sheriff hand deliver a copy to the person or entity you're subpoenaing, asking for documentation in their possession or to testify at a later date. Some states, such as Rhode Island, allow you to deliver your subpoenas personally. The rules of court usually require that you also serve a copy on everyone involved in your lawsuit. In a divorce, this means your spouse or his attorney. As a practical matter, if you seek bank records – to ascertain if your spouse has an account with that institution, for example – the bank will typically notify him of your request before complying. However, by law, you can't rely on this. You must make sure that he receives a copy of the subpoena from you as well.
Motions to Quash
Any entity or person upon whom you serve a subpoena is obligated by law to respond, so when you create your subpoena and have it served, you must allow sufficient time for them to do so. You must also allow time for objections. Anyone you subpoena must do one or the other -- they must deliver the documentation you requested, appear to testify or file a motion with the court to quash your subpoena and invalidate it. The individual or entity you've subpoenaed needs legal grounds to ask the court to quash your request. This might be the case if what you're asking for has no legal bearing on your divorce, or if you're asking someone to testify purely in an effort to harass them or to put pressure on your spouse. However, subpoenas are generally issued in an effort to gather financial documentation, and if the documents have any relation to your case, the court will allow your subpoena because you have a right to this information.
Discovery is an important part of any contested divorce process, but you're not limited to issuing subpoenas. Releases serve the same purpose; you can deliver one to the entity you're requesting documentation from and that party is obligated by law to supply you with copies of the information you've requested. Releases do require your spouse's signature, however, since it represents his official OK that the institution or entity can release what you're asking for. You can also serve your spouse with a notice to produce documents if you think he has the information you need in his possession. For example, if you're trying to establish the balance of an investment account your spouse started during your marriage, you can issue him a notice to produce and require him to give you a copy of the last statement he received. If he doesn't have it, he can sign a release so you can ask the institution directly, but he has to provide some response by law. If he ignores your request, you can file a motion with the court to compel him to comply, but this might be more costly and time-consuming than just issuing a subpoena instead.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.