18 Aug What is a Subpoena in a California Divorce or Child Custody Case?
There are many reasons why someone might have need of an experienced family law attorney in California. Most commonly, an attorney is contacted when there is a dispute between two people who are going through a separation or divorce and the dispute cannot be resolved without legal assistance.
The dispute may be about how to divide up the assets jointly owned by the couple, about deciding on who is responsible for debt that has accumulated; decisions about child support, child custody and visiting rights.
At some point in the resolution process, the attorney may decide to issue a subpoena. This blog is written to explain just what a subpoena sets out to do in California and in particular how it might be used to good effect in a family law case such as one mentioned above.
A subpoena is basically a legal request for someone to do something. It may be made by the attorney who is representing one of the people in the relationship, who is then called the “attorney of record”, or may be otherwise be issued by the court clerk. The latter would happen if an attorney wasn’t used and either one another of the couple had decided to take legal action by themselves.
Subpoenas are not restricted to family law disputes but the types of subpoena and the circumstances in which they may be made will be restricted to their use in family law only in this article.
A subpoena has legal weight. The person who is subpoenaed must obey the request or face a charge against them. There are some circumstances in which someone who has been subpoenaed might legitimately refuse to agree to the request. For example, a doctor or other medical personnel who has been requested to provide medical documents may have a legally sound reason for not providing them because of doctor/patient privileges.
There are basically three main types of subpoena in the family law context
- A subpoena used to request the presence of a person at a court appearance or hearing.
- A subpoena issued to request that a person brings with them evidentiary documents to a court appearance or hearing. The request is for both the person and the documents to be present.
- A subpoena issued solely for business documents to be made available at a court appearance or hearing.
Subpoena for Personal Appearance at a trial or court hearing
This is issued using form SUBP-001. In a family law context, there are many reasons why this subpoena may be issued. Just to mention one example, one of the people in the divorce may be suspicious that their ex-partner is hiding details about how much they earn. This may mean that child support payments are less than they might be. The subpoena may be issued to request the presence of someone who will be asked to answer questions about the suspected concealed wages. This might be the suspected employer of the recalcitrant partner, for instance. The subpoena or the threat of it may be sufficient to ensure the partner who is hiding earnings comes clean about what they are earning.
Subpoena for Personal Appearance and Production of Documents
This is issued using form SUBP-002. This is basically the same as the last one, but the person who is subpoenaed is requested to bring with them certain documents which have some bearing on the dispute at hand. For example, consider the situation described above, where a partner is suspected of working for an employer yet conceals this information and earnings from his or her ex-partner to minimize support payments or alimony. It may be that the employer is asked to bring with him or her wage slips or other evidence which proves that the husband or wife was working.
Deposition Subpoena for Business Records
This is issued using form SUBP-010. The main difference with the last subpoena type is that there is no need for personal appearance and it is just the documents that must be made available as part of deposition.
While it is possible for you to get a subpoena issued on your behalf all by yourself working through the legal channels made available by the California Family Court, it may prove far more effective and easier if you use one of our family law attorneys at the Law Offices of Damian Nolan here in Long Beach. You can contact our office for an appointment by ringing 562-634-1115.