Generally, if you are served a subpoena in a divorce case, you have to follow it. However, if you do not believe you were served properly and do not want to comply, you have a few legal options.
See if any of these (general guidelines) apply to your situation, and seek legal counsel before taking action.
Mind the Time Limitations
All subpoenas have to follow various time limitations in order to be enforceable. In other words, you cannot be served a subpoena at 11 o’clock that requires you to appear in Court at 1 o’clock; that’s not enough notice to make arrangements, and you could argue in Court that it was not served in a timely fashion.
This time limitation particularly comes into play in the event of a subpoena duces tecum, which requires you to be present and provide certain documents. (For more information on the two types of subpoenas, read my previous blog post.
Note if You Cannot Testify
If there’s a reason you cannot testify, you could potentially argue that in Court, as well. For instance, if testifying would mean that you would waive your Fifth Amendment right to remain silent, then, while you can be subpoenaed, you cannot be compelled to testify. If you notify the person/attorney that you will be invoking your Constitutional rights, he/she may release you from the subpoena.
(For example, say you rob a bank with a buddy and the two of you are being tried separately. Your buddy wants you to testify in his case, but you are unwilling to waive your right to remain silent. In this scenario, you — or more likely, your attorney — can file a motion to quash the subpoena saying it would be a waste of time for you to appear in Court, because you are not going to say anything.)
Cite Other Technicalities
If the subpoena is improperly served, it can be contested in Court. As it stands, there are two ways to respond to an improperly serviced subpoena:
- Don’t show up. If you know that your subpoena was served improperly, you have the option of not showing up. The danger here is that judges don’t typically review this information very carefully and may not realize that the subpoena was served improperly. This could result in the judge mistakenly issuing a warrant for your arrest if he or she doesn’t closely review all of the details of the subpoena and thinks you merely failed to appear.
- File a motion to quash service. In the motion, you would argue the issues with the subpoena and/or the service. That will put the issue in front of the judge in a way that the judge is more likely to review it and deal with it. You’ll avoid the possibility of a warrant.
These two options beg the question: how would you know whether the subpoena was served to you properly or improperly?
This is where it’s important to have an attorney review your case. If you don’t have a clear understanding of how subpoenas work in your State, you could make an expensive mistake.
If you have been served with a subpoena — whether in a divorce case or a criminal case — it is highly recommended that you seek professional consult before taking action (or letting the deadline slide). Call our office at 303-449-1873 to set up a free consultation.