In a contentious divorce, it isn’t unusual for one side to refuse to provide financial information to the other party during discovery. Both parties are required to exchange financial records to determine property division and spousal and child support. If you’re dealing with a spouse who is withholding information, there are different ways you can try to get financial records directly from your spouse. However, sometimes the best option is to bypass your spouse and subpoena another party for that information.
What Is a Subpoena?
A subpoena is a legal demand for documents or testimony. When used in divorce to obtain financial information, it is served directly on a non-party (an individual or organization) in possession of the sought after records. For example, a bank, investment firm, CPA, business or other party may be subpoenaed, requiring them to provide the records you’re looking for or relevant testimony. Note that banks keep records for at least 7 years, although some retain them for a longer period.
The recipient of the subpoena has at least 20 days to respond to the subpoena, although an extension may be requested. Many institutions can be slow to gather documents, and they may charge a fee, but they usually comply, which is a significant benefit of a subpoena.
Subpoenas can be enforced by filing a motion to compel a response to the subpoena with the court, in the unlikely event there is non-compliance.
How Do You Get a Subpoena?
Your attorney prepares the subpoena using standard New York court forms. The subpoena must specify what is being requested, including a description of the documents and date range, and give the recipient a reasonable deadline to respond.
A copy of the subpoena must be served on your spouse at least 20 days before serving the subpoena on the non-party, so your spouse has time to object or file a motion to quash the subpoena.
A witness fee must be paid when the subpoena is served, or it won’t be enforceable.
Why Should You Use a Subpoena?
If you have an uncooperative spouse who has failed to respond to discovery requests and your deficiency letter, it may be less costly and faster to obtain financial information from a third party. [link to post on deficiency letter] A subpoena is relatively simple to draft and serve, and is likely to be complied with. The alternative is filing a motion to compel and getting a court order, which is more costly and still may not be successful. Motions to compel will be discussed in our next post.
Can the Subpoena Be Challenged?
Your spouse can file a motion to quash a subpoena. This asks the judge to invalidate or modify the subpoena because it is overbroad, vague, burdensome, asks for irrelevant information or is otherwise objectionable. The motion suspends your subpoena until the court decides the matter. Your spouse will also serve a copy of the motion on the party to whom you have served the subpoena. That party will not search for the documents until it is notified whether the motion to quash was granted or denied.
If you’re considering divorce, we can help. Contact us to discuss how we can achieve a positive result in your case.
