When Do Subpoenas Become Necessary In A Divorce Action?

Obermayer Rebmann Maxwell & Hippel LLP
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Obermayer Rebmann Maxwell & Hippel LLP

[author: Noreen Bratton]

What is a subpoena? Why are subpoenas issued? What do the New Jersey Court Rules say about the issuance of subpoenas in a divorce action? Subpoenas appear to be very misunderstood by parties in divorce actions believing that an attorney can subpoena anyone for anything. This simply is not true. The following is a brief overview of the New Jersey Court Rules and the very specific guidelines in the issuance of subpoenas in a New Jersey divorce action.

A Subpoena Duces Tecum is a Latin term which translates as “you shall bring with you.” This type of subpoena is issued requiring a witness to produce a document or documents pertinent to a legal proceeding. New Jersey Court Rule 1:9 governs the issuance of subpoenas.

Who can an attorney subpoena?

An attorney handling a New Jersey divorce action may issue a subpoena to an individual or entity within the State of New Jersey. Individuals and entities outside of the State of New Jersey are under no obligation to comply with a subpoena issued by the New Jersey Courts. However, in some instances, individuals and entities outside of the State of New Jersey cooperate with a request for documentation.

Can an objection be entered to a subpoena?

Pursuant to New Jersey Court Rule 1:9-2, objections may be made to the issuance of a subpoena preventing the individual or entity from producing the requested documents by filing a Notice of Motion to Quash the subpoena. The Court will review the Motion and responsive pleadings and render a decision. Accordingly, an individual and/or entity who is served with a subpoena is notified that they cannot release the requested documentation until the due date as stated in the subpoena providing an opportunity for an opposing party to make an application to quash the subpoena. Once a Notice of Motion to Quash a subpoena is filed by an opposing party, the individual or entity cannot release the requested documentation until the Court enters its Order on the issue despite the original due date.

What is proper service of a subpoena?

Pursuant to New Jersey Court Rule 1:9-3, a subpoena must be personally served on the individual to whom it is directed and/or a representative of a business. An individual must be 18 or more years of age for proper service. Some entities have become lax with regard to the requirement for personal service and may accept service by electronic mail, facsimile, or First Class mail; however, they are not obligated to do so.

What happens if the subpoena recipient does not comply?

New Jersey Court Rule 1:9-5 states the following: “Failure without adequate excuse to obey a subpoena served upon any person may be deemed a contempt of the court from which the subpoena issued.” This provision of the Court Rule allows recourse for the issuer of the subpoena to enforce its requirements.

Why are subpoenas issued?

Subpoenas are typically issued for the production of documents in a divorce action as a last resort. During the normal course of discovery in a divorce action, your attorney may need to issue subpoenas for the following reasons:

  • One party has failed and/or refused to provide any documentation relative to the matter;
  • One party was the primary caretaker of the household bills and finances and the other party has no or limited access to all records;
  • One party has failed to disclose an asset that the other party believes to exist;
  • One party provided redacted and/or insufficient discovery responses;
  • Neither party retained specific records necessary in the divorce action.

Subpoenas can be a valuable tool in obtaining the necessary documentation in order to review and/or value assets and debts in a divorce action. While, in some instances, it becomes necessary to utilize this tool, the parties to a divorce action should keep in mind that various banking institutions and credit card companies charge significant fees to produce the requested documentation, including research time, copies, postage, and administrative fees. As a result, subpoenas should be issued when all other avenues have been exhausted in order to prevent unnecessary expenditures to either party.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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