I frequently receive questions from people regarding their family law issues. The following is a question which the inquirer agreed may be publicly revealed, and my answer to the question:
QUESTION: How do I get the court to subpoena empolyment information for my divorce? I need to know how to get my husband's paystubs to bring to court so that the case will get thrown out. This will help me prove my husband was not in the state when he filed for divorce, causing the court to not have jurisdiction.
ANSWER: You may have problems trying to subpoena records from a source outside of California. The Court doesn't subpoena records. You or your attorney would have to do that.
Code of Civil Procedure Section 2026.010 provides the procedures for taking an Oral Deposition in another state, which might be the only way to accomplish getting the records from an out-of-state employer - but you would have to first comply with the notice to consumer or employee requirements addressed below. You may seek your husband's paychecks and work records through discovery served on your husband.
Code of Civil Procedure Section 1985 and its subsequent sections provide the procedures and requirements of a Notice to Consumer or Employee that are required before a party can subpoena employment records from an employer.
A party cannot issue his/her own subpoena, but would need the court clerk or an attorney of record in the case to issue the subpoena, and prior to serving the subpoena, a notice to consumer or employee would have to be properly served, with appropriate timing, on the employee.
However, if an out-of-state employer ignores a California subpoena served upon the out-of-state employer (even after the notice to consumer or employee procedures have been complied with), the California court does not have jurisdiction over the out-of-state employer to compel production under the California subpoena.
You can hire a private investigator to seek evidence of your husband's out-of-state employment, if the issue warrants the expenditure.
If your husband filed a divorce case in California, and you are in California, you are better off having your case litigated in California, instead of another state. You would best consult and retain an experienced Family Law Attorney to advise and represent you in the divorce case.
This educational blog is brought to you by DONALD F. CONVISER, an effective and aggressive Los Angeles Family Law Attorney and Divorce Lawyer serving clients in the courts of Los Angeles and Ventura County for over 35 years,owner of Warner Center Law Offices, with offices in Woodland Hills and Century City. Call 888.632.4447 or 818.880.8990 for a free confidential consultation with a Certified Family Law Specialist to discuss your divorce or family law issues. | www.conviser.net | www.conviserfamilylaw.com |
Subscribe to:
Post Comments (Atom)
2 comments:
You can have your attorney issue a subpoena for Written deposition in the state in which the case is pending. (california), then check the rules for the state where the employer is located to determine what that state's code is on interstate deposition and discovery is. It is likely to be one of a couple and you can google to find out, but usually you send the CA (as the case may be) subpoena to the nearest county or localk court clerk along with a small fee and the other state will honor the subpoena by issuing a corresponding one in their state. In California they actually have a form you fill out and a fee of about forty dollars. (I'm in Texas). The only issue that I have run into is that the court clerks often have never done it and you have to find someone who can help them. In Indianna I had to contact a higher court to contact the county clerk and explain the process. Either way, every state has an interstate discovery policy, some are easier than others.
You can have your attorney issue a subpoena for Written deposition in the state in which the case is pending. (california), then check the rules for the state where the employer is located to determine what that state's code is on interstate deposition and discovery is. It is likely to be one of a couple and you can google to find out, but usually you send the CA (as the case may be) subpoena to the nearest county or localk court clerk along with a small fee and the other state will honor the subpoena by issuing a corresponding one in their state. In California they actually have a form you fill out and a fee of about forty dollars. (I'm in Texas). The only issue that I have run into is that the court clerks often have never done it and you have to find someone who can help them. In Indianna I had to contact a higher court to contact the county clerk and explain the process. Either way, every state has an interstate discovery policy, some are easier than others.
Post a Comment