Family Law (Divorce, Family Relations)/Child support modification
Hello. I am in the middle of a Child Support Modification and had a few questions. I fulfilled my Mandatory Disclosure requirements (months ago) whereas my ex only complied a couple weeks ago. He would not submit certain months of statements so I filed a Motion to Compel. At the hearing (last week), I stated my case and my ex stated his. My ex stated he complied with everything (which he did not). That being said, the General Magistrate (Gen. Mag.) GRANTED my motion but at the same time- stated how my ex could respond to his granting of the Motion. The Gen. Mag. gave him a few choices such as my ex saying "he all ready complied", "he couldn't locate the documents" or "he would supply them with his response". I feel this was inappropriate and feel as if the Gen. Mag. guided him to where he would not have to comply. Am I wrong in feeling this way? Just an FYI- I feel 2 of these charge card statements could be used as evidence showing his enormous expenditures (during those months he took a trip to Thailand which is why he is trying so hard to hide it.)
So, my other questions are- moving forward, can I subpoena the document from my ex or American Express directly? How does a subpoena differ from a motion to compel? The Gen. Mag. all ready let him get away with it once, so why would a subpoena work? In addition, is this going to aggravate the General Magistrate? I am just shocked at this. My ex stated he all ready provided the documents (which he did not). If that is the case, then why will he not re-submit them to me? The answer is because he does not want me to see it.
Any help/advice you could give me is greatly appreciated.
DISCLAIMER: I am not an Attorney: I am someone who has had experience in Family Law issues over several years. PLEASE consult a Family Law Attorney in YOUR immediate area/county before you go to court.
I recommend you hire an Family Law Attorney because of the way the "Gen. Mag" responded: If an Attorney was present the "Gen. Mag" may not have responded that way because of the Attorney present.
Your are correct on your feelings because the "Gen. Mag" was not and should not be a legal representation of either party of which if you are correct in how the "Gen. Mag" responded he was 'coaching' your ex which in most courts would not be allowed.
Normally an Attorney would file a 'Discovery Motion' in court and would get the subpoena filed with courts approval: But since you are 'Pro se litigants who representing yourself' you must must ask a court clerk to officially issue you the subpoena forms: You would ask that a subpoena be filed with American Express (giving card number)requesting to gain copies of the bills, etc.
Check with the county clerk. Then you would file this as evidence.
Any documents that have not been subpoenaed to court or verified by a witness may be dismissed by the opposite party as hearsay, unless excepted by hearsay rules or permitted by the judge.
If the witness is called via long-distance phone call, then the requesting party is responsible for initiating the call and providing a payment with a prepaid phone card.you would also obtain asking a subpoena be filed to the companies you request to gain copies of said documents and then the court would issue the subpoena.
Definition:(wikipedia) Link: http://en.wikipedia.org/wiki/Subpoena#Subpoena_process
A subpoena /səˈpiːnə/ (also subpna) is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:
subpoena ad testificandum orders a person to testify before the ordering authority or face punishment. The subpoena can also request the testimony to be given by phone or in person.
subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment. This is often used for requests to mail copies of documents to the requesting party or directly to court.
Subpoenas are usually issued by the clerk of the court (see below) in the name of the judge presiding over the case. Additionally, court rules may permit lawyers to issue subpoenas themselves in their capacity as officers of the court. Typically subpoenas are issued "in blank" and it is the responsibility of the lawyer representing the plaintiff or defendant on whose behalf the testimony is to be given to serve the subpoena on the witness. If a witness is reluctant to testify, then the personal service of subpoena is usually required with proof of service by non-party server.
The subpoena will usually be on the letterhead of the court where the case is filed, name the parties to the case, and be addressed by name to the person whose testimony is being sought. It will contain the language "You are hereby commanded to report in person to the clerk of this court" or similar, describing the specific location, scheduled date and time of the appearance. Some issuing jurisdictions include an admonishment advising the subject of the criminal penalty for failure to comply with a subpoena, and reminding him or her not to leave the court facilities until excused by a competent authority. In some situations the person is paid.
Some states (as is the case in Florida) require the subpoenaing party to first file a Notice of Intent to Serve Subpoena, or a Notice of Production from Non-Party ten days prior to issuing the subpoena, so that the other party may have ample time to file any objections.
Also, the party being subpoenaed has the right to object to the issuance of the subpoena, if it is for an improper purpose, such as subpoenaing records that have no relevance to the proceedings, of persons who would have no evidence to present, or of records or testimony that is confidential or privileged.
Hope this helps