Family Law

Can I Subpoena My Spouse's Employer in My Divorce?

By Aaron Thomas, Attorney

In a divorce, employment information is always relevant. From work schedules and the ability to spend time with the children to income and retirement accounts, employment-related issues affect virtually every decision a court makes. While most spouses are forthcoming about their work, income, and retirement accounts, others may attempt to falsify or hide important financial information. This article will explain why and how you may subpoena your spouse’s employer during your divorce.

Why You May Want to Subpoena Your Spouse’s Employer

One of the most common reasons you may want to subpoena your spouse’s employer will be to discover your spouse’s true earnings. In an age of direct deposit and multiple accounts, many married individuals have no way of knowing their spouse’s true income. In addition to salary, certain individuals may receive bonuses, stock options, retirement contributions, reimbursed expenses, and other forms of compensation from their employers that aren’t apparent to a casual observer. Some of this information can come to light by asking for documents directly from your spouse's employer.

Financial compensation isn’t the only type of information you can discover through an employer. Your spouse may have behavioral issues at work that corroborate your claims about conduct at home. Your spouse’s disciplinary file may reveal information helpful to your case. In some cases, subpoenaing an employer and its records may uncover an affair or illegal behavior. For example, employee records could show that your spouse wasn’t on a business trip as you believed, or that your spouse was using a business account to book hotels or buy gifts for a paramour.

If you have children, your spouse may try to downplay work-related time commitments in order to gain an edge in the custody battle. Simply discovering your spouse’s true work obligations may be worth subpoenaing the employer.

Ways to Gather Your Spouse’s Work Information

If you can get the documents and information you need without having to subpoena your spouse’s employer, you should do so. Sending subpoenas cost money, and depositions (where your lawyer would interview your spouse or spouse's employer) can get expensive fast.

First, you should try accessing any records you can obtain directly. Your spouse may keep a file with paystubs, retirement account records, an employment contract, or other documents. A shared computer in your home may contain the information you need. If the records are somewhere in your home, you’ll probably be fine just copying them without asking, but there are limits. For example, if the records you’re seeking are on a computer your spouses uses strictly for work, or inside work email, there may be laws against accessing them. Speak with an attorney to ensure you can access records that are stored in a questionable place.

After you’ve gathered as many documents about your spouse’s employment as you can on your own, your attorney may ask for the rest through formal "discovery," including written requests for documents and information. Once a request for discovery has been served, your spouse must turn over any documents that are relevant to the case. Spouses that refuse to produce documents can be held in contempt of court and punished with fines and even jail time in extreme cases.

You can also send open-ended questions to your spouse called “interrogatories,” which your spouse must answer under penalty of perjury. Interrogatories are useful when you need to ask your spouse to list all of his or her assets, and you don’t know what all is out there. Your attorney can also flesh out your spouse’s responses by taking your spouse’s deposition.

If your spouse hides an asset that’s later discovered, the court could punish him or her, and your spouse may lose credibility in the rest of the case.

Subpoenaing Your Spouse’s Employer

Given the many ways you can obtain your spouse’s work information, only the most dishonest individuals would risk attempting to hide information during a divorce. Still, many spouses are caught lying about income or other work-related matters. If you have reason to believe your spouse is hiding something, you can subpoena your spouse’s employer.

First, you may choose to send a subpoena for documents, asking for any documentation relevant to issues of compensation, discipline, expense accounts, and the like. While your spouse may be willing to lie about compensation, an employer is much less likely to falsify information in a court case.

You can also send a subpoena for a deposition, requiring the employer to produce relevant documents and answer questions in person, under oath. At a deposition you and your attorney may learn the full story of any disciplinary problems, or information about stock options or deferred compensation that you might not discover otherwise. While you generally want to exhaust other options first, in contentious cases, a deposition is often the only way to get the information you need.

If you have additional questions about subpoenaing your spouse’s employer, contact a local family law attorney.

Investigating Your Spouse's Business

Perhaps your spouse owns a business, individually or with partners, and you’re suspicious that you still haven’t received the whole story. You have the option of hiring a forensic accountant to investigate whether there are additional assets your spouse is hiding. A forensic analysis can be expensive, so it’s usually only worth doing when you have hard evidence that your spouse has been dishonest. Your attorney can help you make the decision on how far to go in your search for your spouse’s hidden assets. For more information, see How to Find Hidden Assets in Divorce.

Using a Hidden Assets Clause in Your Divorce Agreement

You can also protect yourself against your spouse's hiding assets after the divorce by including a “hidden assets” provision in your divorce agreement. A hidden asset provision automatically grants a spouse a certain percentage of any assets that the other spouse hid during the divorce. Often, divorce agreements grant the defrauded spouse more than 50% of hidden assets to encourage spouses to disclose everything, rather than take the risk they’ll be discovered later.

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