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Ask Steven K. Your Own Question

Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1670
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I am filing an order to show cause and an motion of contemp.

Customer Question

I am filing an order to show cause and an motion of contemp. Please let me know which forms I need. My ex is in contempt for not providing me with his taxes/income/bonus informaition per our court order. I asked him and her refused. I have his written refusal. My intent is to subpeona his employer for his wages and bonus info (our orders have a bonus schedule to which he is not abiding.

Another expert told me I needed to get the sub from the court clerk's office but I went there and was told I could get the form online for Calif. family court. Please advise on the forms I need along with proof of service forms (in person & by mail) thank you.
Submitted: 1 year ago.
Category: Family Law
Expert:  Steven K. replied 1 year ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

The third and fourth forms on this page are the documents needed to file for contempt. If you are low income, you may also wish to file a fee waiver.

Steven Kincaid :

The other party will have to be personally served. Here is the appropriate Proof of Service document.

Steven Kincaid :

Do you have any other questions?

Customer:

Thank you, XXXXX XXXXX the exact same forms while I was waiting for your reply, but I appreciate the confirmation.

Customer:

I have another question.

Steven Kincaid :

Go ahead!

Customer:

I was told that I need to file a subpeona to my ex's employer requesting his income, travel expenses, bonuses, etc. Which form should I use for this? And how is this filed in conjuction with the contempt order?

Customer:

Also does the subpeona have to be personally served to the employer? He works in a secured building and I have waited outside for a long time before someone let me inside. Service by mail would be easier.

Steven Kincaid :





Subpoena Duces Tecum. It is the second document on this page.
Steven Kincaid :

You should also serve the employer with Notice to Consumer or Employee and Objection, the 6th document on that page.

Customer:

Thank you. I saw the subpoena Duces Tecum but wasn

Steven Kincaid :

Subpoenas usually have to be personally served, but many companies accept and comply with subpoenas that are sent by mail or fax. You can contact the company and ask them, especially if they are a big company.

Customer:

sure if that was the correct form.

Steven Kincaid :

Any other questions?

Customer:

They are a big company but there is no answer by phone, even to the HR Dept. I have left messages and sometime get a return call days later, more often not. You stated "Subs usually have to be personaly served" can you please confirm for me if personal service is required?

Customer:

can you please explain to me the form you recommended?

Customer:

This form .....You should also serve the employer with Notice to Consumer or Employee and Objection, the 6th document on that page.

Steven Kincaid :

Personal service is required. However, I have never had to personally serve a big company with a subpoena because they comply simply by receiving the subpoena by fax or mail.

Customer:

My apologies I keep hitting the space bar and it sends my response before I am done typing. Sorry for the choppy replies.

Steven Kincaid :

I'm sorry, I did not mean to say that form was recommended - it is mandatory. You serve it on the employer and the other party and it gives the other party the opportunity to object if you are asking for something you have no right to.

Steven Kincaid :

No problem.

Steven Kincaid :

If they have an HR department and you send the subpoena there, they will probably comply without personal service. Technically, if they did not, however, you could not enforce the subpoena against them.

Steven Kincaid :

Anything else?

Customer:

1. Thank you for clarifying the form is mandatory. Now I am clear. 2. I am tempted to serve the employer by fax or mail (is fax a recognized form of "service by mail"?) but I am afraid the courthouse will kick out my service by mail thus halting the whole process. Is this likely?

Customer:

I also have a question about the contempt motion. Should I cite and/or attach copies of our orders specifiying that we must each exchange income info yearly? As well as his "refusal" e-mail? Should I add these items as "Exhibits."

Steven Kincaid :

Service by fax is not service by mail. It's just that the employer will probably comply. Once the employer complies, you have what you need and you don't have to worry about service.

Customer:

Point taken about if the employer complies, but to my knowledge, if I do not file a proof of service with the courts within 5 days of filing the motion, the motion will get kicked back. I learned that the hard way the 1st time I filed.

Customer:

Probably safest to send my friend down to his employer and have him attempt personal service.

Steven Kincaid :

But you don't serve the motion on the employer. You only serve the subpoena on the employer. You only serve the other party with the motion. So you don't need to show service on the employer if the employer complies voluntarily.

Steven Kincaid :

You can do a subpoena without a motion pending. The two are independent, except that you might want the information you subpoena to support your motion. Is this post Judgment?

Customer:

Ok, I'm better understanding it now. Yes, the sub supports my motion. Yes, post judgement. MSA was 12/2011. 9/2012 was the order for disclosure. I had asked for the information before and been told he did not receive a bonus etc. To date, he will not provide his taxes.

Steven Kincaid :

Technically, you should have a pending action in order to due a subpoena, so in a way, you may need to file the motion before serving the business with the subpoena. Since the business has no way of knowing this, they will probably comply regardless of whether you file your motion before or after serving the subpoena.

Steven Kincaid :

oops,"do" a subpoena, not "due"

Customer:

When support was figured corresponding with my order to review support - ex said he had not yet filed his taxes & that he was filing married but separate with one dependent. My past support was based on that and it is a lie. His taxes were never provided. I wish to have his tax info provided directly through a transcript of his tax return - IRS Form 4506-T - which shows when he filed, any extensions, all data etc. When I asked ex to agree he did not saying that there was personal info he didn't want me to have. How can I ask the courts to make him provide copies via the IRS Transcript?

Steven Kincaid :

If you had a pending action, you could try to subpoena his tax records from him (not IRS, they won't comply) but you cannot force him to sign that form through a subpoena.

Customer:

Yes, I know the IRS won't comply. And he will give me tax records once the motion is filed but he will give me "dedacted" copies which is why I want the transcript. The Sub is not for taxes it is for his income & bonus info. How else might I get him to agree to signing the IRS form? I have an online copy of his signature but it would be difficult to explain... So..is there a way for me to ask the courts for his compliance via the IRS Transcript form?

Steven Kincaid :

I honestly don't know any way to do that.

Customer:

I can ask for it in my contempt motion, can't I? Ala the old saying "Ask and you shall receive." I figure it can't hurt to ask. My reasoning is that he had previously stated that he had not yet filed his taxes, if that is true, the transcript supports him in that.

Steven Kincaid :

You could definitely ask for it as a sanction for contempt.

Steven Kincaid :

Then if the court orders it and he does not comply, you can again get him in contempt.

Customer:

If he is found to have cheated me out of bonus monies or misrepresented himself in regards XXXXX XXXXX support - will I ever see these dollars? Will the court order to pay through the contempt motion? I have been told that I will never receive back-dated support. Do you think that is true? How do I ask for the transcript as a sanction for contempt?

Steven Kincaid :

You can't get past support but you can ask for the money as a sanction for contempt.

Customer:

Ok, well, it's worth a shot. How might I ask for these sanctions? How does this tie in with my contempt motion?

Steven Kincaid :

When you file for contempt you ask for sanctions for the contempt. In your declaration you can say what sanctions you think would be most helpful.

Customer:

Do I just state that I am requesting that the court order him to provide his taxes through the transcript form due to the large difference between what he stated he was filing in 2011 and what he states he filed for 2012, in addition to his refusal to provide the information as requested. No taxes have been submitted since the beginning our court case. And if court finds that he has misrepresented himself that he be made to pay wrongly withheld support monies as a sanction for contempt? .....Something like that. Would that work? I welcome any suggestions you have.

Steven Kincaid :

That's exactly what I was saying, yes.

Steven Kincaid :

I'm going to have to log off soon. Do you have any other questions?

Customer:

Thank you so much for your help. You are one of the best experts I have worked with. It may take me a while to provide formal feedback for you but I will give you glowing recommendations. Beyond excellent knowledge, service, everything. Best wishes and many thanks.

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1670
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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