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When the Alleged Homewrecker Gets Subpoenaed!

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In a Rhode Island Divorce a common practice of family lawyers is to subpoena the person their client alleges is "the other woman" or "the other man" who has broken up the marriage.

EXAMPLE

Todd and Marlene have been married for ten (10) years. Marlene didn't see the signs that Todd was extremely unhappy in their relationship. Todd files for the divorce. Marlene is in shock when Todd files for divorce and instantly forms the belief that there must be "another woman" because she sees no reason why Todd would file for divorce otherwise. Marlene starts putting together a list in her mind of females that his husband knows from work, little league practice for their son, and friends of hers that have been around her husband.

Marlene hires an attorney and files a counter-claim for divorce. Eventually Marlene narrows down her list to the one or two people she suspects had an affair with her husband. She starts following Todd around and finds that Todd is having lunch occasionally with one of those people. Marlene forms in her mind the belief that this woman must be "the other woman" who broke up her marriage.Marlene is now angry at both her husband Todd and this woman. Marlene's attorney subpoena's the woman Todd was having lunch with into court, usually around the time of the trial.

ATTORNEY TACTICS

Unfortunately this is an all too common tactic that attorneys take in a divorce matter that causes divorces, in my humble opinion, to escalate beyond control or to immediately settle a case in an inequitable manner.

Let me explain. The "other woman" as in the example may have no basis what so ever.The fact is, people grow apart. The parties in a marriage are often blind to the signs of the breakdown especially if both parties do not have good communication skills with one another.

Denial is often an initial reaction to the recognition that divorce is taking place or is on the immediate horizon.The person being divorced does not wish to believe that he or she is unattractive, boring, unyeilding or unworthy or being loved as a spouse in the marital relationship. That denial, if not tempered with reason, often leads to the conclusion that there must be another person in their spouse's life that caused the marriage to break down.This is because the spouse cannot, or will not, come to terms with the fact that the marriage simply wasn't a good match or that their spouse was looking for something in his or her life and thought it was present in the other spouse only to find that it wasn't. Some spouses marry with blinders on. They see the good qualities of the prospective spouse and then simply hope (or even expect) that over time if they marry the person that the remaining characteristics and qualities they do not see in that person will develop... or they believe that the person will change because of their influence.

Whatever the circumstances, divorce lawyers will not hesitate to subpoena one or more persons that the spouse believes is (or could be) the person that caused the breakdown of their marriage.This person is seen as the alleged "homewrecker".

The purpose of subpoenaing the alleged homewrecker is two-fold. First, when an attorney does this at the wishes of the client (especially without any proof that anything has occurred) it seemingly validates the beliefs of the client that there was in fact a "homewrecker" who ruined the marriage.Regrettably I have found this to be true mostly in the case of women who feel scorned or rejected when the man files for divorce.

Second, whether the person subpoenaed is a love interest or simply a friend and confidant that the husband has chosen to confide in and is part of his support system to get through the divorce, it puts pressure on the man to keep the love interest, friend or even girlfriend out of the "divorce battlefield" to prevent her from experiencing anxiety, humiliation or any other fallout from the scorned wife. This in turn has a third effect of leveraging the husband (at least in this example) to succumb to the demands of the wife's attorney even if they are unreasonable and inequitable purely to protect a person who may in truth simply be a friend who is supporting the man through the divorce process by being a listener or sounding board.

WHAT CAN THE "ALLEGED HOMEWRECKER" DO?

He or she can make a Motion to Quash before the court. A Motion to Quash is a motion asking the court to invalidate the subpoena either permanently or temporarily based upon the circumstances.

The Rhode Island Family Court Judges generally have a good grasp on the reasonableness of a subpoena used in these situations. A judge will not typically allow the unfettered intrusion into the life of person who is only alleged to be a person who has caused the breakdown of the marriage, especially if the subpoena to the third party (ie the alleged homewrecker) demands the production of documents (called a "Subpoena Duces Tecum") that invade the life and personal finances, etc . . . of the third party. Without corroboration from the spouse who is alleged to have had the affair, or some other corroboration, there is a very good chance that the court will quash or invalidate the subpoena.

Typically the "alleged homewrecker" can orally or in writing, move to quash the subpoena. It is best that if the person served with the subpoena is going to do this that he or she have more than one basis for doing so.

REASONS FOR QUASHING A SUBPOENA in these circumstances include:

1) It is intended merely to harass the person served and/or cause him or her anxiety;

2) It is believed that it was issued merely to force a party to agree to inequitable terms in order to prevent one parties' friend from being embarrassed and humiliated by even the accusation the he or she was involved in an extramarital affair, thus it is being used to cause undue duress on the party alleged to have been involved in an affair;

3) That the subpoena demands documents that are invasive of a reasonable person's right to privacy;

4) That the subpoena was untimely served (requests for documents should provide at least 2 to 3 days for the person served to obtain the documents);

5) That the subpoena was improperly served (A Rhode Island Subpoena must be served (a) personally, (b) by a person authorized to serve process in Rhode Island, (c) with the State of Rhode Island, (d) with a check for witness fees of approximately $12 to $14).

6) That the subpoena should, in the very least be invalidated, subject to the serving party's establishing a foundation for the subpoena and/or the alleged relationship between that party accused before the third party's privacy is violated. Attorneys call this "quashing the subpoena subject to establishing foundation.";

7) The subpoena cannot be complied with without undue risk of loss of employment of the subpoenaed individual with explanation as to why there is undue risk (i.e. brand new job and can't take time off);

8) The subpoena cannot be complied with due to illness with a physician's note, preplanned vacation with proof of same, employment obligations out of state on the time and dates compliance with the subpoena is required.

THE POINT

Persons alleged to be the "other man" or the "other woman" who have been served with a subpoena in a divorce matter do have options of recourse to prevent this attorney's tactic. Persons served may oppose the subpoena for these reasons and other basis of good cause if they do so timely and do not sit on their rights (i.e. wait til the last minute). The longer a subpoenaed person waits to oppose a subpoena, the less likely it is that the court may grant the requested relief (i.e. that the subpoena be quashed in whole, in part, or subject to establishment of foundation).

This article is for informational purposes only and is NOT legal advice. You should not take legal action without legal advice from a licensed practitioner who has been fully informed about your specific circumstances. The Rhode Island Supreme Court licenses all attorneys in the general practice of law and has no procedure for recognition of specialties.


ABOUT THE AUTHOR: CHRISTOPHER A. PEARSALL
Christopher A. Pearsall Experienced Full-Time Rhode Island Divorce and Family Law Lawyer Christopher A. Pearsall provides information, tips and scenarios to help you understand RI Law as it relates to divorces and other family law matters and offers coaching to help you get through your own RI Divorce or Family Law Matter in an affordable an inexpensive manner. http://www.rhodeislanddivorcecoach.com/

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