Subpoenas in Family Law Cases
Subpoenas can be powerful tools in obtaining information in a divorce case. A subpoena is legal document issued by the court commanding the person to whom it is directed to attend a hearing or deposition. A subpoena can also require the production of records and documents and can even require the inspection of electronically stored information. Additionally, a subpoena can require the person subpoenaed to allow the entry onto and inspection of property.
Subpoenas are akin to court orders. If the person to whom the subpoena is directed fails to comply with the subpoena, they can be held in contempt of court and fined or jailed. In fact, each subpoena is required to contain a warning that the person being served must appear, and if they fail to appear, they can be found in contempt of court and fined $50.00 or sentenced to jail for a period of 10 days, or both.
The most common use of subpoenas is to obtain financial documents such as employment and payroll records. If a party has retirement accounts with their employer, records pertaining to those accounts can be subject to subpoena. In cases where a party’s income information is relevant, such as where child support or alimony is being sought, work records will often reveal that information.
Bank records are often subpoenaed in divorce cases, too. Such records often contain evidence of spending patterns that may become relevant in proving that your spouse has dissipated marital property or had an extra-marital affair. Cancelled checks and debit card transactions will be included in the records as well as information about other accounts held by the bank from which the records are subpoenaed.
When misbehavior of your spouse is suspected, it can often be beneficial to subpoena cellular telephone records. The information provided will include all telephone calls including the dates, times and length of each call. Some providers will also produce the numbers to and from which text messages are sent and received; however, they usually do not include the content of the text messages themselves.
Another use of subpoenas is to obtain medical records. These records can come in handy when the health of one of the parties is at issue. There are certain steps that must be taken and procedures that must be complied with when attempting to obtain the medical records of the opposing party. The Health Insurance Portability and Accountability Act, commonly referred to as HIPAA, must be followed so as not to violate the privacy rights of the opposing party. Psychiatric records are generally not subject to subpoenas due to the sensitive nature of such records. However, there are situations where psychiatric records would have to be produced pursuant to a subpoena. When psychiatric records are permitted to be produced, the court from which the subpoena issued will usually require steps be taken to protect the records from further disclosure.
Education records can also be subpoenaed, but only under certain circumstances and with certain procedures put in place to protect the privacy of the student whose records are sought. Often the school records of children will be subpoenaed in custody cases. Those records will show things such as attendance and tardiness, which can often be used to prove a parent is neglecting the educational needs of a child.
Often, subpoenas will be used as a tactic to achieve a quick resolution of a case. Imagine the “secret” paramour of a party being served with a subpoena to attend a deposition. The opposing party is suddenly faced with the prospect of having the affair exposed and made public. Not only would such a revelation damage the opposing party’s case, but it could also damage the reputation of both the paramour and the opposing party. The same tactical advantage can often be achieved by subpoenaing financial and business records.
Subpoenas are valuable tools that serve an important function in contested divorce, custody and child support cases. Their use can provide invaluable information that can be used to advance one’s position in hearings and trials. They can be used to gain a tactical advantage in certain situations and can form the basis of successful settlement negotiations.
