The Use of Subpoenas in Family Law Litigation

 Unfortunately, some divorce and family law cases cannot settle without an evidentiary hearing or a trial. When that occurs, contested litigation in divorce and family law matters can require much preparation work.

One discovery tool in the tool belt in family law litigation is using subpoenas. Subpoenas can be vital in ensuring that evidence is obtained and that third-party witnesses with important information provide documents, evidence, and testimony.

What Is A Witness Subpoena?

When talking about the use of subpoenas, however, it is essential to distinguish between the two types of subpoenas that are utilized. The two options are witness subpoenas and a subpoena duces tecum.

A witness subpoena is a subpoena served on a third-party witness with documents, evidence, or valuable testimony in the case. The options are endless. But it could be a school teacher, doctor, neighbor, relative, or friend who has information about the divorce or family law matter.

Sometimes, these witnesses are served a subpoena to attend a deposition before trial or an evidentiary hearing in a case. In other instances, the subpoena may compel the witness to testify in court at a trial or evidentiary hearing.

What Is A Subpoena Duces Tecum?

A subpoena duces tecum is different from a witness subpoena. A subpoena duces tecum is typically a subpoena to get records from a third-party entity.

The possibilities are endless. However, it could be a subpoena served on a bank to get banking records. It could be a subpoena on a school for school records. It might be a subpoena served on a business to obtain business records. It might be a subpoena to a doctor for medical records.

Typically, with a subpoena duces tecum, the records are all sought. However, if the documents are provided before the due date with an affidavit, that is the end of the matter. Often, testimony at a trial or deposition is not necessary. But in some cases, it may be necessary where clarification is needed or not all the records are provided.

What If A Subpoena Is Not Utilized?

Sometimes, parties wonder whether a subpoena is needed. In other words, many seek to do this first if the records or testimony can be obtained without a subpoena.

Indeed, testimony, documents, and evidence can often be obtained through consent. Where that is the case, a subpoena might not be needed. But in other cases, a subpoena is the only way for a lawyer to get an unwilling third party to testify or provide the necessary documents and evidence.

Having an attorney with the resources and knowledge to give you the best representation is vital to your interest and the interest of your family.  You also want to make sure they will exhaust all avenues and be willing to research, pursue and implement strategies to provide the best possible outcome.

Rob McAngus, Partner with Verner Brumley Parker, P.C., is Board Certified in Family Law and his practice is devoted primarily to family law, including high conflict divorce, custody cases, and complex property issues. In addition to being selected on the Board of Directors for the Family Law Section of the Dallas Bar Association; he values your priorities as a parent and works with you to achieve the goals that will help transition your family to a new normal.  As both an adopted child and a member of a blended family, Rob can provide a unique perspective in the practice of family law.

Rob has been recognized in Super Lawyers as a Rising Star in 2016 through 2021, and recently The National Advocates recognized Rob as one of the Top 40 Under 40.  He can be reached by calling 214.526.5234 or by email at rmcangus@vernerbrumley.com.  Mr. McAngus received his bachelor’s degree cum laude and master’s degree from Baylor University and graduated cum laude from the Dedman School of Law at Southern Methodist University.