The Use and Misuse of Subpoenas in Divorce Cases

By Gerald A. Maggio, Esq.

Orange County divorce mediation lawyers; California Divorce MediatorsBeing served a subpoena means you must appear in court and testify. The legal document also orders you to bring supporting documents on the date mentioned in the subpoena. In most cases, people don’t like subpoenas because they are forced to do something that they normally wouldn’t do. A subpoena can be misused depending on who is issuing it and to what extent.

Subpoena duces tecum literally means “bring it with you.”  If you get a subpoena, you must bring every material that might support or break a case. The materials include reports, tapes, files or specific records. You may also have to provide financial notes and appointment dates.

In a divorce proceeding, you might have to appear in court with evidence supporting child custody or any other evidence that you are ordered to bring.


Subpoenas are used by attorneys to obtain information that might strengthen or weaken a client’s case. It could lead to someone’s innocence or guilt depending on the subpoena. In divorce cases, a divorce attorney could issue a subpoena to the opposite party to settle custody issues. Subpoenas are issued under the criminal procedure laws and are taken very seriously. Failure to respond to a subpoena can attract heavy fine or even jail.

It is also used to settle property claims in a divorce case. If one spouse feels deprived of getting an equal property share, then a subpoena can order the other spouse to appear before the court and justify his/her actions.

The subpoena is usually signed by an attorney acting on behalf of the court in which the attorney practices. If the subpoena orders an important government official to be present in court, it must be signed and authorized by an administrative law judge.


Subpoenas are often misused by one spouse to harass the other. A subpoena can be misused by an attorney when he/she issues it without providing a deposition notice. The subpoena is mailed or handed over directly to the other person.

Another way in which subpoenas are misused is the issue of a subpoena that is not justified in a criminal court. It can ask for absurd claims and documents. In a court of law, the subpoena needs to be authorized through the proper legal channel, but some attorneys use it to shake up the opposition. The moment someone receives a subpoena, he/she gets agitated and attorneys often take advantage of such situations.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation