Contested divorce actions can be complex. Many litigants consider the discovery phase of divorce to be the most time consuming, as their attorneys are required to thoroughly review years’ worth of financial statements and property or business documents. The opposing party is usually responsible for producing requested documents, but when they fail to comply, a subpoena must be issued.
What is a Subpoena?
Subpoenas are common in contested divorce cases. There are two types of subpoenas used in New York divorce actions: a regular subpoena, and a subpoena duces tecum. A standard subpoena simply summons a person to testify in a court proceeding. The summoned party must appear and testify during a court appearance or a pre-trial deposition.
A subpoena duces tecum, on the other hand, requires a person or organization to produce certain documents pertaining to the case. These documents can include bank statements, tax returns, mortgages, cell phone records, and even social media posts. At Brian D. Perskin & Associates P.C., we primarily subpoena records from financial institutions when the opposing party is unable to comply with our discovery demands. If the need arises, we can also serve a subpoena on an individual, both during the discovery period of divorce, and in preparation for trial.
When are Subpoenas Needed?
Subpoenas are required when one person fails to comply with the other party’s discovery demands. Either they refuse to produce the requested documents, or they are unable to obtain statements because they do not have access to them. It is quite common for individuals to receive a subpoena during a divorce action.
In many cases, subpoenas will be issued upon a business, corporation, or other institution, in an attempt to obtain a large quantity of documents. Bank, investment, mortgage, and other financial statements are needed to accurately determine each party’s net worth, and to ensure a fair and equitable settlement. Couples who have a high net worth tend to face a prolonged discovery process, and thus, more subpoenas that will be served upon banks.
Banks and other companies must respond to each subpoena duces tecum they receive, regardless of whether or not they have the requested documents or records. If documents for a specific time period do not exist, the organization must alert the requesting law firm in writing. If the subpoenaed documents are able to be produced, the institution will forward all requested items to the law firm.
Large corporations have special units within their legal departments that only handle subpoena related inquiries. Because of this, it is often easier to subpoena large amount of records from a company directly, as compared to each party compiling years’ worth of statements on their own. Letting experienced professionals handle complex discovery matters can make divorce less stressful.
Being Served with a Subpoena
Being served with a subpoena should not incite panic. Litigants who are represented by counsel can elect to have their attorney accept service on their behalf. Pro-se litigants, or those who are representing themselves during a divorce action, should consider hiring a lawyer to handle their case. The discovery phase of divorce, as well as settlement negotiations, can be tricky, and will benefit from the attention of an experienced attorney.
When a party is served, it is important they work diligently and quickly to obtain the subpoenaed documents within a reasonable amount of time. Most companies make a record of documents available online, which can easily be downloaded and printed or saved to a disc. Litigants can also contact the institution directly, and request the documents or statements be provided to them.
While most documents or records are free to be subpoenaed by either party, some items are confidential and off limits in a divorce action. These items will vary on a case by case basis, which is why it is important to hire an attorney to handle the action. Such items can include confidential medical records, or financial statements that are irrelevant to the divorce action.
It may be tempting to purposely not comply with a subpoena during a contested divorce, but it is not encouraged. Parties who do this risk being found in contempt. The key to having a successful divorce is to work diligently towards a settlement, and that means complying with subpoenas in a timely fashion. Don’t cut off your nose to spite your face!
Discovery and Subpoena Professionals
The most important component of creating a winning divorce strategy is to hire an experienced team of attorneys to handle the nuances of your divorce case for you. The family law firm of Brian D. Perskin & Associates P.C. specializes in complex matrimonial actions, with an emphasis being placed on difficult discovery periods. For more information on subpoenas, divorce, and how we can best represent you, contact 718-875-7584 or visit us online to schedule a free consultation today!