If you are going through a divorce and your spouse is not cooperating with requests for information, it can significantly delay your case. Both of you are legally required to give each other relevant financial information. This is needed to help determine the assets to be divided in divorce and both parties’ income to calculate spousal and child support where applicable. If you are in court, a preliminary conference order directing the production of financial records, among other things, will be signed by a judge after your first appearance. If, notwithstanding the preliminary conference order, your spouse withholds records, generally, you have two options you can pursue: a subpoena or a court order via a motion to compel.
Obtaining Financial Records with a Subpoena
A subpoena is a legal request for documents. It is served directly upon the non-party in possession of the records. The non-party has at least 20 days to respond to the subpoena. While there may be a request to extend the time to respond to the subpoena, non-parties usually comply with the document. If, however, a party does not comply with a subpoena, it can be enforced by filing a motion to compel a response to the subpoena with the court.
Getting a Court Order
You can also obtain a court order directing the withholding spouse to produce the records without first getting a subpoena by filing a motion to compel. The motion to compel will put your spouse in a position of having to explain to the judge why he or she has not produced the records you are seeking. Ultimately, a court order will be issued that your spouse will be required to follow. If your spouse doesn’t comply with the court order, upon the filing of a motion for contempt, the judge can require your spouse to pay a fine or go to jail although neither remedy is likely absent a pattern that warrants such a response.
Subpoena vs Court Order
While you can choose either or both options, it is generally best to start with a subpoena. It is far less expensive to draft a subpoena than a motion to compel. A motion to compel also requires spending extra time for court hearings.
Financial institutions, accountants, financial advisors, and others may have the information you need and typically, they are highly unlikely to fight the subpoena because they are disinterested parties and don’t want to incur the cost of litigating over it. There are some cases where the third party will refuse to comply, such as when the party feels a duty of loyalty to your spouse. In that case, you can file a motion to compel them (not your spouse) to produce the requested documents. A good tactic to try is to prepare the motion papers and give them to the third party before filing them to show you are ready to go to court. This may encourage them to provide the records rather than fighting the subpoena.
It is frustrating dealing with an uncooperative spouse and having to spend extra time and money on subpoenas and court orders. However, it is important to enforce your rights to financial information.
If you are considering a divorce, experienced legal and financial advisors can help ensure you obtain the information you need to negotiate or litigate a fair result in your case. Contact us for assistance in your matter.