When navigating a divorce, it is in your best interests and those of everyone else involved, including children, that you have an amicable one. Unfortunately, an amicable divorce is not always possible, which requires the case to go through an evidentiary hearing and trial.
When some of the evidence required in a divorce case is in the hands of third parties, they may have to testify or surrender the evidence. Sometimes, the court may compel them to do so through subpoenas.
This guide focuses on subpoenas in family law litigation, from their definition to how they are used, and can be a good read if you are going through a contested divorce.
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What is a Subpoena?
In the world of legal orders, a subpoena stands out by mandating someone to take certain actions for legal cases. You’ve got two flavors here: Subpoena ad testificandum gets you to testify, while Subpoena duces tecum is all about producing evidence.
Subpoena Ad Testificandum
Subpoena ad testificandum, also known as witness subpoenas, is served to third-party witnesses possessing information that can serve as evidence in a case, compelling them to testify.
In family law litigation, third-party witnesses can be a school teacher, relative, neighbor, doctor, or friend. The court can use subpoenas during the discovery phase or at trial, where the subpoenaed witness testifies on oath about their knowledge of a case. Also, they may be cross-examined by the lawyers from both sides, with the answers they provide becoming part of the case’s official records.
Subpoena Duces Tecum
Subpoena duces tecum is a type of subpoena used to compel a person named in the subpoena to produce documents or physical evidence pertinent to a family law case. It may apply to situations such as when the court wants to access bank, school, medical, and similar documents. It could be correct to say that it is directed at agencies but may have a named individual or their title.
For example, if the court wants to access an individual’s employment records, it may address the subpoena to a company’s human resource manager. In some cases, providing the documents by the named respondent is enough. However, the court may seek to get some clarification in some situations.
Are Subpoenas Always Necessary?
“Every case is different, which means that not all cases require subpoenas. If all the witnesses needed for your case offer their testimonies willingly, you may not need to subpoena them,” says family law attorney, Galit Moskowitz, of Moskowitz Law Group, LLC.
However, when dealing with documents or physical evidence, subpoenas can be a legal requirement as it may be the only way an entity can release an individual’s sensitive information.
For example, medical records contain an individual’s sensitive information, and the only way a hospital can disseminate it legally is if a legal order requires them to do so.
Responding To a Subpoena
As mentioned earlier, a subpoena is a legal order. As such, responding to it is mandatory, and failure can result in contempt of court charges, which can lead to fines or imprisonment upon conviction.
As a party in family law litigation in Connecticut, you may have to compensate witnesses for their time, but that depends on the type of witness and subpoena. There is also a statutory witness fee paid out by the court and a millage rate for witnesses who need to travel to testify, paid at approximately $0.58 per mile.
