In my California family-law practice, I regularly receive calls from people desperate to find evidence to prepare for (or defend against) their California family-law legal matter. The legal issues usually relate to division of assets and debts, child support and/or spousal support motions or modification of child support and/or spousal support orders. Do any of the following statements relate to your case?
- “How can I prove the other party is working? He gets paid ‘under the table’ and is claiming he has no money to pay child support (and/or spousal support)?”
- “I know my spouse is hiding assets and is refusing to disclose them on his Schedule of Assets and Debts (FL-142) or Property Declaration (FL-160). How can I get him to disclose everything?”
- “How can I prove the Mom is earning more than she’s disclosing to the court on her Income and Expense Declaration (FL-150)?”
- “How can I prove my spouse is not too sick to work? He says his doctors have diagnosed him with ___ and he can’t work? I, in fact know, he’s not sick and that he’s lying to the court.”
One of the mightiest swords in the defense or preparation of a California family-law matter pertaining to money and assets is the almighty subpoena! You ask, “what is a subpoena”? Well, let me enlighten you. It just may change your luck!
A California subpoena is a legal document that requires the recipient to do something. It’s a mandatory request. The recipient can’t refuse to comply—unless he or she has a legally-sound reason. (For example, a psychotherapist can refuse to comply with a subpoena for medical records under the psychotherapist-client privilege.) The subpoenas are “issued” either by an “attorney of record” if the party is represented by legal counsel or the clerk of the court, if the party represents themselves. There are different types of subpoenas, depending on a person’s needs:
- Civil Subpoena for Personal Appearance at Trial or Hearing (form SUBP-001). This type of subpoena is very useful if a party wishes to compel a person (witness) to appear at an evidentiary hearing or trial. For example, Party A may want to subpoena the appearance of the owner of the establishment where Party B is earning money “under the table.” For example, Wife may subpoena the owner of the barber-shop where Husband is cutting hair. On the witness stand, Wife would then be able to ask the business owner very specific questions about Husband, e.g. his work schedule, when he started working, what their shop charges for haircuts, etc., how many hours per week Husband is at the shop. Strategically, the subpoenaed business owner may put pressure on Husband to “come clean” with Wife and settle the matter so that he does not have to testify against him. For instance, pressure from a third party may be what is actually needed to get uncooperative spouse to become cooperative.
- Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents . . . and Things At Trial Or Hearing and Declaration (form SUBP-002). The difference between this form and the first one is that this subpoena includes a request that the witness bring certain things with him/her at the trial or hearing. In most cases, the witness is asked to bring documents, such as financial records. Using the example above, Wife may include in this subpoena a request that the business owner bring a printout of his calendar where appointments for Husband are scheduled—in order to show what days Husband worked and the number of appointments he had during a certain period of time. This would be used to prove Husband is lying about being unemployed.
- Deposition Subpoena for Production of Business Records (form SUBP-010). This document is used to request business records only—of any type. Typical records in a divorce or support matter would include, for instance, bank records, credit-card statements, investment accounts, employment records, medical records, police records, etc. This type if subpoena is especially helpful in those situations where the other party is under-reporting income and/or is hiding assets. So, here’s how this type of subpoena would help Party A where Party B is under reporting income and/or assets: Using our example from above, let’s say the Husband indicates on his Income and Expense Declaration (FL-150) that he is an unemployed barber and has no income from which to pay spousal and/or child support. Let’s also say that Husband is driving a new 2014 Lexus and taking trips with his new girlfriend to Hawaii and New York. If Wife subpoenaed all of Husband’s bank records and credit-card statements, for instance, she may find (and later prove) that there are numerous undisclosed deposits in Husband’s checking and/or savings accounts, an undisclosed money-market account, large payments towards Husband’s credit-cards, and so on. In other words, what Husband is claiming as “income” is far less than what Husband is spending; hence, Husband is perjuring himself and is not disclosing all his income. Taking it even further, Wife could also subpoena all records pertaining to Husband from the barber-shop owner, such as cashed checks (tips and checks given to Husband), rental agreement for renting his work-station at the shop (which would also show how long Husband has been earning money “under the table), calendar entries reflecting everyone who was scheduled with the Husband—including their names. Customer’s names are not privileged information!
There are other types of subpoenas; however, the ones listed above are the most common in California family-law matters.
The benefits of using subpoenas to get documents or require witnesses at trial (or hearing) are, literally, endless. The problem is that most people who represent themselves are not familiar with these forms. Some benefits include:
- Completeness and accuracy of the documents. By law, the recipient of the subpoena must comply. (Of course, there are some exceptions to this rule, but generally, no exceptions for financial records.)
- Records are certified: A “custodian of records” is required to “certify” the records. This is extremely important. Technically, all financial records you wish to submit to the court are inadmissible as “hearsay.” This means that the Court is required to not consider any business records you wish to present to the Court for consideration if the other party or their attorney objects to their admissibility under the Hearsay Rule. Certified records are an exception to the hearsay rule and they are admissible, despite the other party’s objection!
- Reimbursement of Attorney’s Fees & Issuance of Sanctions: If Party A can prove that Party B refused to cooperate with Party’s informal request for documents, or failed to fully disclose records or assets on their Schedule of Assets and Debts (FL-142) or Property Declaration (FL-160) or Income & Expense Declaration (FL-150), Party A could ask the Court to punish Party B with court sanctions. Court sanctions could include, for instance, attorney’s fees, fees associated with the subpoena (which are usually copy charges), or the granting the entire (100%) undisclosed asset to Party A!
So, if you have a pending California family-law matter (divorce, custody, support) or wish to modify a prior court order, it may be well worth the time and energy to subpoena some records (and witnesses) in preparation for your hearing or trial.
The subpoena process is pretty simple. It may be well worth it, however, to pay an attorney for an hour or two of their time to coach you through the process. If you are coached on how to prepare one subpoena, you will then know who to prepare many subpoenas! The other benefit of working with an experienced family-law attorney is that may be able to help you identify the types of records you may want to subpoena in your legal matter or upcoming hearing or trial.
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