During your divorce you may need to search for community property your spouse hid in secret bank accounts.1 If your asset searches & / or bank searches show your spouse hid community property, you may need to prove this in Court. If so, there are pitfalls you can avoid which are discussed below. I have seen these pitfalls as a lawyer with over 33 years of experience and hope you benefit from this post about them.
I. AVOID HEARSAY & CONCLUSORY CLAIMS ABOUT COMMUNITY PROPERTY
If your spouse transferred money into a secret bank account, you should supply the Court with legally sufficient evidence about the secret account. Although there can be exceptions, this means you can not use hearsay to prove a secret bank account exists. Nor should any private investigator you hire make conclusory allegations to prove your spouse has a secret bank account. Instead of these examples of insufficient evidence, you must give the Court competent evidence regarding the secret bank account.
II. SERVE SUBPOENAS ON BANKS BUT NOT FOREIGN ONES
Competent evidence about your spouse’s secret bank account includes records from the bank that houses the secret bank account. You may be able to use a subpoena to compel this bank to supply you with the records. These records include: monthly bank account statements, bank signature cards, account opening documents, etc. Moreover, you would supply the court with a certification from the bank’s custodian of records to show the subpoenaed records you received from the bank are competent evidence. Additionally, a subpoena is usually unenforceable with regard to out-of-state witnesses. Therefore, if you need records from a bank headquartered out-of-state, you should probably serve your subpoena under the Uniform Interstate Deposition and Discovery Act. Meanwhile, if your spouse’s secret bank account is at a foreign bank, do not make the mistake of employing a subpoena to seek the offshore records. In other words, you can not use a subpoena across international borders.
III. USE LETTERS ROGATORY TO GET RECORDS FROM FOREIGN BANKS
However, you might be able to use a Letter Rogatory, (a.k.a. Letter Of Request or Request For Legal Assistance), to collect the evidence you need from a foreign bank. A Letter Rogatory may allow you to gather your spouse’s secret bank account records from a foreign bank. Letters rogatory may be available to you because of the international treaty, The Hague Convention,Taking Of Evidence Abroad In Civil Or Commercial Matters, 1970. You could initially seek the Letter Rogatory from the domestic court handling your divorce. If this domestic court issues your Letter Rogatory, it will be in the form of a court order. Your Letter Rogatory would request help from the foreign court with legal authority over the foreign bank. The Letter Rogatory would ask the foreign court to direct the foreign bank to supply you with your spouse’s secret bank account records & / or other evidence.