A common issue for many parents or parties seeking either child or spousal support is figuring out exactly how much money or assets the other party has access to. The court will calculate support depending on each party’s respective income, so it’s important to get accurate numbers during the discovery phase of the divorce process.
If one party is attempting to hide income from the other, then it may be necessary to propound discovery or send out subpoenas to various entities to gather further information.
Two common types of subpoenas that get issued are to employers and to banks.
Date and basis for termination (if there is suspicion the other party quit their job to terminate support);
Employment status (full or part-time);
Hours worked per week and schedule;
Payroll stubs or other documentation of wages received by the employee;
Records showing the accumulated value of vacation time, sick pay, personal leave, and/or compensatory time; and
Records demonstrating all retirement rights and other employee benefits.
Again, this list is not exhaustive and can include any other specific details depending on the case and type of employment.
The other common type of subpoena is to a party’s bank accounts to see how much money is available to them, if there is any other income source that they have, or if they are in fact making more than they claim.
All monthly statements and all other documents related to all accounts;
Copies of all cashed or canceled checks.
In order to make the request less cumbersome on the party being served with a subpoena, it is important to limit the scope of your request to a specified time period that is relevant to the divorce case.
For example, the requested documents could be records from the last two years prior to the parties’ separation. Otherwise, a party or the entity may object that the request is overboard or over-burdensome.
When a party sends out a subpoena, they must send notice to the opposing party and their family law attorney. This is called a “Notice to Consumer or Employee and Objection.” This can be sent to the other party, and must also be sent to a third party, or someone who is not a party to the divorce case, if the records requested involve their private information as well.
For example, if a party wants to subpoena bank statements of her husband, but the husband holds joint accounts with his brother, then a Notice to Consumer or Employee and Objection must also be sent to the brother.
This is because the brother’s privacy rights are about to be interfered with, and he must also be given an opportunity to object or approve.
If a party or non-party wants to object to the sharing of their employment or consumer records, they may use the back of the Notice to Consumer or Employee and Objection form to write in their objection and serve it to the requesting party or their divorce lawyer.
Under California Code of Civil Procedure section 1985.3(g), the person objecting must cite "the specific grounds on which production of the personal records should be prohibited.”
Once an objection is made, the entity holding the records is no longer required to produce the information until they have a court order, or until the parties and the consumer/employee all agree to release the information, perhaps on a more limited scope.
The party issuing the subpoena still has options to move the subpoena forward. First, the party is required to “meet and confer” with the person objecting. This means they must reach out to the objection party and try to find a solution, usually by limiting the scope of the investigation.
If this is successful, all parties and attorneys involved sign a limited scope agreement, and send it to the entity holding the records. If this is not successful, the requesting party may file a Motion to Enforce the Subpoena.
A Motion to Enforce the Subpoena must also include a “declaration showing a reasonable and good faith attempt at informal resolution of the dispute.” This must also be filed within 20 days of receiving the objection, so it’s wise to act quickly to being the “informal resolution” process.
The process is a bit different for an objection from a party to the case whose records are being sought. Under California Code of Civil Procedure section 1985.3(g), prior to the date for production, a party can bring a Motion to Quash or Modify the subpoena.
Notice of the motion needs to be given to the entity holding the records at least five days prior to production, so it’s wise to act quickly once receiving the Notice to Consumer or Employee and Objection.
This motion asks the court to protect the person from “unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (California Code of Civil Procedure section 1987.1)
If you need expert guidance navigating your divorce case or need legal help for any other family law matter, the family law attorneys at Cage and Miles can help. Start by taking our free divorce quiz to determine which path might be right for you.