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.