Subpoenaing Witnesses for a Divorce Trial

By Beverly Bird

A successful divorce trial is the result of gathering and documenting information. If you and your spouse cannot reach a settlement and a trial becomes inevitable, you will probably want to seek the assistance of an attorney, rather than proceed on your own. Your attorney will first attempt to identify facts that will support your case through discovery methods. These might include issuing interrogatories, which are written questions your spouse must answer under oath. Then your attorney must bring these facts to the attention of the judge. One way to accomplish the latter is to subpoena the person who holds the information, legally obligating them to give testimony.

Types of Subpoenas

A subpoena ad testificandum obligates someone to verbally state what he knows under oath. This is appropriate for use if your attorney wants someone to testify for you at trial. However, if that person might do you more harm than good, your lawyer might elect to use a subpoena duces tecum instead. This is a demand for documentation the witness has in her possession. For example, if your spouse tried to conceal an asset by transferring ownership to his sister, his sister probably would not be a good oral witness for you; she’s on her brother’s side. Your attorney can issue her a subpoena duces tecum instead, requiring her to produce the documents showing the transfer. He can then use them as an exhibit at trial.

Types of Witnesses

Your witnesses may have observed behavior on the part of your spouse of which your lawyer wants the judge to know, or your witnesses may be experts. For example, if custody is in dispute, your lawyer might want to subpoena your child’s teacher to testify that your spouse showed up two hours late to pick her up from school. He might also want to subpoena a child psychologist to testify about the impact such an event would have on your child. Expert witnesses have trained knowledge, so they can state their opinions on the record.

Divorce is never easy, but we can help. Learn More

Serving Subpoenas

While your divorce litigation is active, your attorney has the right to subpoena anyone who has information that might be pertinent. If he is issuing a subpoena to someone who is with a large financial institution, these companies sometimes have their own requirements for service. Service requirements can vary by state as well. Usually, your attorney will hire someone to hand-deliver the subpoena, or he will send it by certified mail.

Timing

You cannot ask your attorney to serve a subpoena on someone the day before your trial. In most states, the law requires litigants to complete the discovery process at least a month before the trial date. Your spouse's attorney must have a list of the witnesses you’re going to call so he has time to interview them before trial if he elects to do so. Your attorney will also want to meet extensively with your witnesses to prepare them for trial and the questions your spouse's attorney will most likely ask.

Considerations

A subpoena legally requires a witness to appear at trial and to answer questions. It cannot really force her to say something she does not want to say. If you and your attorney try to force someone to testify against her will by issuing her a subpoena, she can simply tell him under oath that she doesn’t recall an incident about which she's questioned. She might be vague or put a spin on information that might actually hurt you. Before he begins subpoenaing witnesses, your attorney will want to make sure the individuals you're suggesting can help you. Witnesses, who obviously want to support you, such as your family members, are less useful in court than impartial third parties.

Divorce is never easy, but we can help. Learn More
How to Give a Testimony at a Divorce Hearing
 

References

Related articles

Can You Be Deposed in a No Fault Divorce?

A deposition is a formal procedure in which the parties to a divorce gather information from each other before a trial. In a no-fault divorce, there may be factual issues in dispute such as income, property, support or custody, even if the parties don't have to prove wrongdoing to get divorced. By getting relevant information out in the open, depositions help the parties reach a mutual settlement before trial, or at least can streamline the issues to be decided during the trial.

How to Answer Divorce Interrogatories

Interrogatories and depositions are part of the discovery process in a divorce lawsuit. Discovery allows both parties to ask the other side questions, in order to bring out all of the facts in a case. In a deposition, you're questioned directly by the opposing attorney while under oath. Your answers are recorded and can be used as evidence in court. Interrogatories are questions mailed or delivered to you or your attorney by the other party. You have a limited period of time to provide written answers to the questions

How to Prepare for a Divorce Trial

When two people weave all aspects of their lives together in marriage, separating the strands so they can divorce can be a complex process. Some issues between you might be crossed off the list right away, such as who keeps the cat. Other issues may be more contentious. If you can’t come to a settlement, you’ll have to go to trial. You don’t have to try all aspects of your divorce before a judge, just those you haven’t agreed on.

Get Divorced Online

Related articles

What Not to Say When Tesifying in Child Custody

Testifying can be terrifying when everything hangs in the balance and so much depends on your words. If you're ...

What to Expect in Your Final Divorce Hearing on Your Trial Day in South Carolina

South Carolina encourages spouses to reach an agreement on the terms of their divorce, such as property division and ...

Can Documents Obtained by a Private Investigator Be Requested as a Discovery in a Divorce Case?

If you suspect that your soon-to-be ex will go to any and all lengths to dig up information to influence your divorce ...

Divorce Discovery Process

In between filing for divorce and the final trial, divorcing couples may use discovery to get as much information as ...

Browse by category
Ready to Begin? GET STARTED