What Is a Subpoena
A subpoena is a court order compelling a person to testify at trial or a deposition, or to produce documents and records relevant to your divorce case. There are two types: a subpoena ad testificandum (requiring testimony) and a subpoena duces tecum (requiring document production).
How Subpoenas Work in Divorce Cases
During property division, spousal support, or custody disputes, you often need evidence from third parties. Your spouse's employer might have wage records. A bank holds account statements. A therapist has records about a parent's fitness. A subpoena compels these parties to provide the information, and they must comply or face contempt of court charges.
Your attorney typically issues the subpoena on your behalf. State rules vary on timing and service requirements. Most states require at least 5 to 14 days' notice before a deposition or testimony date. Some states, like California, require a separate proof of service filed with the court. Check your state's civil procedure rules for specific deadlines.
Common Uses in Divorce
- Property division: Subpoena brokerage statements, retirement account records, real estate appraisals, and business financial records to establish the full value of marital assets.
- Spousal support: Obtain tax returns, W-2s, 1099s, and employment records to establish actual income when a spouse claims reduced earnings or self-employment losses.
- Custody evaluations: Subpoena medical records, school records, mental health treatment records, and prior court filings to demonstrate parenting capacity and a child's best interests.
- Hidden assets: Subpoena credit card statements, loan documents, and transaction records from financial institutions to uncover undisclosed accounts or transfers.
Costs and Limitations
You typically pay a small fee to serve a subpoena, usually $25 to $100. The receiving party may request a protective order if the subpoena is overly broad, burdensome, or seeks privileged information like attorney-client communications or spousal communications made during the marriage.
Subpoenas cannot compel a party's spouse to testify about confidential communications in most states. Therapy records are often protected by therapist-patient privilege. Your attorney will know which documents are actually obtainable in your jurisdiction.
Common Questions
- Can my spouse refuse to respond to a subpoena? No. A third party served with a valid subpoena must respond by the deadline or request a protective order. If your spouse is the one being subpoenaed and ignores it, the court can hold them in contempt, which carries fines or jail time.
- How long does it take to get documents after issuing a subpoena? Most states allow 10 to 30 days for compliance. Banks and large institutions often take the full time permitted. Plan ahead if you need documents before a support hearing or trial.
- What if a third party claims they don't have the records? They must provide a detailed written response explaining why they cannot comply. If you believe they're hiding documents, your attorney can file a motion to compel, which may result in sanctions against the non-compliant party.
Related Concepts
Discovery is the broader process of exchanging information between spouses. A subpoena is a tool used during discovery to obtain information from third parties. Deposition is when you question a witness under oath, and a subpoena often compels that witness to appear for the deposition.