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Divorce: Can You Issue a Subpoena in a Divorce Case?

We often hear about attorneys issuing subpoenas in big, nationally covered court cases, but if you’re getting a divorce at your local courthouse, can you collect information the same way?

The short answer is yes. Subpoenas are issued all the time in divorce cases.  

Let’s take a look at the two different kinds of subpoenas, and consider some things your attorney may take into account when deciding whether to subpoena your soon-to-be former spouse.

The Two Types of Subpoenas

A subpoena is a document you have served on somebody which requires him or her to appear in Court. A subpoena duces tecum, the second type of subpoena, is essentially the same thing except the “duces tecum” requires that the person not only has to appear in Court, but he or she must also bring specific documents.

The documents may be things like bank statements, tax returns, passports or something else that supports the case, and the particular details will be specified in the subpoena.

Here’s an example: let’s assume that your client’s estranged spouse has a relative that saw him hit the minor child. Your client wants the relative to show up and testify to what he/she saw at the divorce trial. The relative doesn’t want to testify against the estranged spouse and refuses to appear. This is when his attorney may choose to serve a subpoena and the relative wouldn’t have a choice: he/she would have to come to Court and testify.

The other way attorneys may use a subpoena is to attempt to give a witness the appearance of objectivity (although, in my opinion, this can come off as somewhat superficial).

For example, if your client has a new significant other. Your attorney may be concerned that the new significant other wouldn’t be seen as credible because of the relationship. 

In that case, you could serve a subpoena on the significant other and make it appear as he/she is being forced to testify. You could ask, “Why are you here today?” and he/she can honestly answer, “I was served a subpoena so I had to come.”

Now, in theory, she appears much more objective. However, divorce trials are to a judge, and I’m not convinced the Judges will treat the witness as more credible.

Issue a Subpoena Duces Tecum to Obtain Documents

If, in a divorce case, you want to know exactly what your ex-spouse has spent money on, you can serve a subpoena duces tecum on the bank to force them to bring all of his or her bank records forward. This way the ex-spouse has no ability to hide anything.

These documents can be used for trial or for a deposition, which is a situation where you can require someone to testify under oath before a court reporter but not a Court. This is helpful for me as an attorney if I want to know how a witness will testify in front of a judge. Not only that, but the deposition will also allow me to tie the witness down to a specific story; he or she will not be able to change the story once it is documented by a court reporter.

In sum, subpoenas and subpoenas duces tecum are frequently used in divorce cases, whether the attorney is using them to gain access to particular documents or simply ensure that a witness will show up in Court.

If you are facing a divorce, it is highly recommended that you hire a legal expert (attorney) to help you sort through everything (without an attorney, it is not legally possible to issue a subpoena or a subpoena duces tecum).

Call us at 303-449-1873 to set up a free consultation