Third-Party Subpoenas and Depositions in Divorce

 Posted on January 10, 2025 in Divorce

Being served with a subpoena or a notice of deposition can be unsettling, especially if you are not directly involved in the divorce or family law case in question. But significant others, grandparents, social workers, and other third parties may unexpectedly find themselves drawn into divorce litigation, facing the prospect of providing testimony, documents, or other evidence. Understanding your rights and obligations in these situations is essential to both protecting your interests and following the law.

At Weiss-Kunz & Oliver, LLC, we help third parties who are subpoenaed or deposed in legal cases. Whether you have been asked to testify, submit records, or appear in court, our Illinois family law attorneys are here to guide you through the process.

Protecting Your Rights in Depositions and Subpoenas

What Is a Deposition?

A deposition is an interview conducted outside of court where a witness provides testimony under oath, which means the witness has to legally promise to tell the truth. A deposition may be recorded or transcribed and can later be used as evidence during a trial. As a third party, you are legally obligated to answer questions truthfully, but you also have the right to protect yourself from overly invasive or irrelevant inquiries.

What Is a Subpoena?

A subpoena is a court order requiring you to produce certain documents or appear in court. Subpoenas come in various forms, including:

• Subpoenas for Records: Requests for documents such as financial statements, photographs, or legal agreements.

• Trial Subpoenas: Orders to appear as a witness in court.

Failing to comply with a subpoena can result in legal consequences, but an attorney may be able to object to the subpoena.

Why Are Third Parties Issued Subpoenas in Divorce Cases?

In divorce cases, third parties may have important information about disputes such as child custody, property division, or allegations of misconduct. Subpoenas are often issued during the discovery phase, when both parties are gathering evidence to build their cases. Common reasons a third party might receive a subpoena include:

• Child Custody Disputes: Teachers, doctors, therapists, or family friends may have information about a child’s well-being or the parenting abilities of one or both parents.

• Finances: Employers, accountants, or business associates may have access to records that reveal a party’s income, assets, or financial misconduct.

• Relationship Evidence: Significant others or caregivers may be asked to testify about relationships, caregiving roles, or other personal matters important to the case.

When served with a subpoena, it is crucial to understand the reason for the request and the scope of the information attorneys are looking for. Working with an attorney of your own ensures you meet your legal obligations while protecting your rights.

What Happens if I Ignore a Subpoena?

Ignoring a subpoena can result in serious consequences, as it is a court-ordered demand that must be obeyed unless you successfully challenge it in court. If you ignore a subpoena, you could be held in contempt of court; if you do not show up for your subpoena date, a judge can fine you and even put you in jail. If you eventually do comply with a subpoena, your credibility may be damaged by not having cooperated at first, making your testimony less reliable.

The bottom line is this: Even if you hope to fight the subpoena in court, do not ignore it. Talking to an attorney about your options, such as filing an objection, filing a motion to quash the subpoena, or cooperating with the subpoena in a way that protects your rights, is far safer than simply ignoring it.

What if I Cannot Find the Information Demanded in a Subpoena?

You may be asked for information in a subpoena that you do not currently have, that you never had, or that someone else believed you had but which you honestly cannot find or do not know about. Subpoenas involving texts, emails, financial documents, photographs, and other evidence may request such evidence.

If you cannot locate the information demanded in a subpoena, you should not panic, but it is crucial to handle the situation carefully to avoid potential legal consequences. Subpoenas are court orders, and failing to provide requested information without a valid explanation can lead to penalties or being held in contempt of court. Here are the steps you should take:

• Document Your Efforts: Make a diligent and thorough search for the requested information. Keep detailed records of your search efforts, including where you looked, who you spoke with, and any other actions taken to locate the documents or evidence. This documentation can demonstrate to the court that you made a good-faith effort to comply.

• Notify the Requesting Party: If you are certain that the information is not in your possession, custody, or control, promptly inform the attorney or party who issued the subpoena. This notification should be in writing and include a clear explanation of why the requested information is unavailable. For example, you might explain that the records were lost, destroyed, or are held by another party.

• File a Formal Response: In some cases, it may be appropriate to file a formal objection or a written response with the court, detailing your inability to comply. An attorney can help ensure that your response is accurate, thorough, and complies with all procedural requirements.

• Seek Guidance from the Court: If the subpoena demands information that you cannot locate and the requesting party disputes your explanation, the matter may need to be addressed in court. A judge can evaluate the situation and determine whether your inability to comply is justified.

• Avoid Misrepresentation: Be honest and forthcoming about the absence of the requested information. Making false statements or attempting to mislead the court can result in serious legal consequences, including perjury charges or sanctions.

If you find yourself in this situation, consulting an experienced attorney is essential. A lawyer can guide you through the process, ensure that your response is legally sound, and help protect you from potential penalties.

What Happens if I Lie to Protect My Child in a Deposition?

Parents who are called to testify in a subpoena about their adult child’s divorce may naturally want to protect their child. However, giving false information during a deposition is against the law and can lead to legal repercussions, including being charged with perjury. Perjury means lying under oath, and it is a criminal offense that can trigger fines, jail time, and probation.

Lawyers are skilled at asking questions in more than one way, and will often do this to try to catch witnesses in a lie, which is why it is important not to make things up. If you do not know the answer to a question, just state that. Do not say anything that is not true that you would have to remember accurately later.

If you give inconsistent or contradictory testimony, a lawyer will seize on this as evidence that you are lying or covering something up. If this is true, and you are discovered lying – even if the lies are well-intentioned – your dishonesty could actually end up hurting your child’s case. If you are concerned about the implications of your testimony, consult with an attorney to discuss how to approach sensitive questions while protecting your legal rights.

What Kinds of Questions Are Third Parties Asked in Divorce Depositions?

Third parties in divorce depositions may be asked a wide range of questions, depending on the issues in the case. Common topics include:

• Parenting and Child Welfare: Questions about the child’s daily routine, emotional well-being, or interactions with each parent.

• Financial Information: Inquiries about a party’s income, assets, or financial dealings.

• Relationships: Questions about the nature and extent of relationships between the parties, including romantic relationships or caregiving roles.

• Witness Observations: Testimony about events, behaviors, or other observations that may be relevant to disputes in the case.

An attorney can help you prepare for these questions, ensuring you answer truthfully while avoiding unnecessary disclosures or incriminating statements.

Will I Be Cross-Examined as a Third Party in a Divorce Deposition?

There is a definite possibility that you will be cross-examined as a third party in a divorce deposition. Attorneys for both sides may question you to try to get information that supports their client’s case or to challenge the credibility of your testimony. Cross-examination can be intimidating, without a doubt, but an attorney can help.

Practicing Before Giving Testimony in a Deposition

If you work with a lawyer at Weiss-Kunz & Oliver, LLC before a deposition, we will help you prepare for the types of questions you are likely to be asked. By practicing beforehand, you are far more likely to stay calm and composed, rather than feeling nervous and intimidated. You will have a sense of what you can and cannot, as well as what you should and should not, say.

Your attorney can also help you practice your body language during a deposition. Even if you are sure you are telling the truth, some attorneys may try to use your body language to attack your testimony, make you nervous, and try to trip you up. It is important to remember that attorneys are not only looking for information but are also trying to "win" their case – sometimes by any means necessary.

Good body language during a deposition means you are sitting up straight with your feet on the ground, not hunching over, and looking the people you are talking to in the eye with your hands lying quietly in your lap. The tone of your language should be calm, and your answers should be as brief as possible while still fully answering the question.

While you are practicing, we will point out if you have a nervous habit of adjusting your clothes, tugging at your hair, touching your face, or doing other things that are distracting or could undermine your credibility.

During any cross-examination, we will also protect you by objecting to inappropriate or irrelevant questions. Although you may not be able to avoid a deposition or cross-examination during the deposition, with a great attorney, you can walk into a deposition feeling much more confident that your rights are protected.

How Our Firm Can Help

At Weiss-Kunz & Oliver, LLC, we provide representation for third parties facing depositions or subpoenas. Our services include:

• Preparation for Depositions: We guide you through potential questions, help you avoid pitfalls, and ensure your rights are protected.

• Response to Subpoenas: Whether you are asked to produce documents or testify, we can help you comply with legal requirements while minimizing the burden on you.

• Court Representation: If you are called to testify in court, we will stand by your side to protect your interests and provide advocacy during your appearance.

Contact a DuPage County, IL Divorce Trial Deposition and Subpoena Attorney

If you have received a subpoena or deposition notice, you need to make sure you obey the law while protecting your rights. The Elmhurst, IL trial deposition and subpoena preparation attorneys with Weiss-Kunz & Oliver, LLC have the experience and resources to provide effective legal representation in these situations. Contact us today at 312-605-4041 to discuss your case and learn how we can assist you.