Stamford Divorce and Family Law Attorney
Discovery is the official process of collecting information pertaining to a legal claim after that legal claim has been properly filed with the Court. Regardless of the type of civil case, as part of the litigation process, you are granted an opportunity to talk to people who have information about your case, request documents, or request information that is important to the case. In a divorce matter, getting information from certain people or entities may be necessary to assist in the valuation of businesses run by the divorcing couple, to learn about any hidden assets your partner may have, or look into retirement accounts or securities to which you may be entitled. This process is critical in ensuring you have all of the information you need to proceed with your divorce matter and secure the best possible outcome.
Subpoenas
As with many legal matters, getting the information you need from others can be difficult and frustrating. If you cannot convince someone to give you the documentation or information you need by asking, you may need to file a Subpoena.
A Subpoena, Subpoena Duces Tecum, and Notices to Take Deposition demand someone must either appear in Court or produce specified documents--bringing documents, tangible items, or other things to the Court or Deposition. A Subpoena may also be issued if someone is not being cooperative with scheduling matters. If one is unlikely to comply with the Notices to Take Deposition the Subpoena will (theoretically, at least) ensure that the person will show up at the predetermined time at the predetermined location (usually a Law Office or Court), or face penalties. If a Subpoena is ignored, fines may be applied or Orders by a Court requiring the witness to appear under threats of sanctions. That can even include the power to incarcerate the recalcitrant Witness.
The Discovery Process
Discovery and the process of collecting personal and financial information is one of the most important aspects to resolving a case or obtaining vital evidence if the case goes to trial. It affords a party the opportunity to depose or obtain records from Third-Parties and Entities other than the divorcing couple. These Third-Parties may provide vital information and testimony impacting the case.
Discovery is procedural, and the laws of the State where the deposition is to be taken determine that process. In a Divorce, getting information maintained outside of the jurisdictional borders of the States of Connecticut or New York is critical to the settlement or trial of a case. That information can be used in the valuation of businesses, or property, including limited liability companies and corporations, to discover hidden assets and to properly assess executive compensation plans including retirement accounts, profit-sharing plans, securities, stock options, restricted stock units and awards for determining the accurate and true income of a spouse for the purpose of calculating child support or Alimony (Maintenance in New York). All of these can impact the appropriate division of assets between parties.
Depositions When a Party Resides Out-of-State
Rules governing depositions of a party defendant to a divorce who resides Out-of-State may require a Court Order or Subpoena served upon the party in Connecticut for a defendant to be deposed there. This is the rule if that party resides more than thirty (30) miles from their residence.
Alternatively, an Out-of-State may be required to be deposed upon notice and without a Court Order in Connecticut. In New York, parties may serve notices to depose the other party in the county of the action, county of residence of the party, or place of business of that party.
Rules Governing the Issuance of Subpoenas and Taking of Depositions of Out-of-State Non-Party Witnesses in New York and Connecticut
In New York, old law regarding depositions of Out-of-State Non-Party Witnesses to a Connecticut Action required Motions to be filed in Connecticut for the Appointment of a Commission and person to conduct a deposition in New York. The Connecticut Court usually reviewed the discovery demands requested by the Connecticut party of the Non-Party Witness in New York. The New York Court generally approved the discovery sought and simply ratified the Connecticut Order and taking of the depositions of the Non-Party Witness in New York. This process was time consuming and costly, requiring the commencement of a separate proceeding in New York to obtain this discovery pursuant to the Civil Practice Law and Rules ยง 3102(e).
This law, while still valid, has all but been replaced in New York since January, 2011, by the easier, less costly and less time consuming mechanisms of the Uniform Interstate Depositions and Discovery Act (UIDDA) adopted in New York. The new law permits the service of a Judicial Subpoena and Notices to Take Deposition by a New York Attorney to obtain the discovery of a Non-Party Witness in New York, by a party in the Connecticut Divorce Action.
Connecticut presently as of this writing is not a signatory to the UIDDA, however, a Court and Judge sitting in Connecticut will recognize foreign Subpoenas and Notices to Take Deposition Ordered by a New York Court and will generally apply full faith and credit to such Orders. The Court will not contravene the Order and discovery sought pursuant to the New York Court mandate, unless it is unreasonable or oppressive, permitting a Connecticut Court to modify or Quash the Subpoena. Challenges can still be made in New York by Connecticut litigants for Subpoena upon Non-Party Witnesses there that are overly broad and oppressive.
A Connecticut Attorney can be called upon by a New York Attorney to a New York Action, pursuant to Connecticut General Statutes Section 52-148(e)(f), to issue a Subpoena in Connecticut upon a Non-Party Witness, usually based upon a New York Court Order. A New York Attorney can issue a Subpoena in New York upon a Non-Party Witness in New York, to a Connecticut Action, even without a Connecticut Court Order, with the advent of the UIDDA adopted in New York. When there are no New York Orders pending requiring Depositions or Subpoena to ensue in Connecticut, the Courts in Connecticut a non-signatory as of the present date to the UIDDA, have generally still looked to statutes and case precedent governing these matters, which address whether the litigant to the New York Action has sought reasonable and appropriate discovery against a Non-Party Witness in Connecticut.
Connecticut and New York Divorce Law Attorney
Discovery is a critical component in divorce proceedings. Issuing Subpoenas and Notices to Take Depositions within or Out-of-State in New York or Connecticut upon parties to an Action or Non-Party Witnesses, are a significant and important part of the discovery process in a Divorce Action. With the apparent hurdles a requesting party may encounter when trying to get information, it is imperative that you consult with an attorney who knows how to navigate the discovery process in both the States of New York and Connecticut. Heidi E. Opinsky and her legal team not only know how to receive information from other parties, but how to do so effectively, cost-efficiently, and lawfully. With convenient offices in both New York and Connecticut, you can rest assured that you have an experienced divorce attorney on your side, no matter where you are from. Contact Heidi E. Opinsky at (203) 399-5949 to learn more about your rights and to develop the best strategy to ensure a favorable outcome in your divorce proceedings.
