He filed for child support modification due to being laid off. His 401K was not reported on his financial affidavit, and he'd verbalized a year or more before that he didn't have it anymore. However I happen to know from his current wife that he just cashed it out. Since the 401K had a significant amount in it, I'd like a record to show the judge. I don't know the plan administrator, however I do know the name of his former employer. Who do I subpoena? The ex or his former employer?

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Originally Posted by Marciebevans

... Who do I subpoena? The ex or his former employer?

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Both. Get the former employer to say that the ex had a 401K.

Then ask the ex to explain what happened to it and when. Insist on documentation.

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Originally Posted by AK lawyer

Both. Get the former employer to say that the ex had a 401K.

Then ask the ex to explain what happened to it and when. Insist on
documentation.

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May I subpoena record of where the 401k went if dispersed, rolled over, etc. Since the subpoena to the employer will

If you can prove that he lied on his affidavit and deliberately concealed the 401(k), then you really don't need to know where it went. His support will be readjusted using the amount reported from his employer.

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Originally Posted by Marciebevans

May I subpoena record of where the 401k went if dispersed, rolled over, etc.? Since the subpoena to the employer will

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If the employer has those records, sure.

Is this for trial or for a deposition? In either case, use a subpoena duces decum. It means they must bring the records with them.

Who in his previous employer would I subpoena? The doc. Says they need to report to the court on the date of our final hearing. Also, does it matter that I know where the 401K went? If he rolled it over into something else like an IRA or he cashed it out? I know his financial affidavit shows he had nothing at that time. What will help me more - that he lied or that he cashed it out?

This is for a final hearing of child support modification

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Originally Posted by Marciebevans

Who in his previous employer would I subpoena? ...

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Address it to "employee records custodian".

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Originally Posted by Marciebevans

... I know his financial affidavit shows he had nothing at that time. What will help me more - that he lied or that he cashed it out?

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If you can show he lied, the burden shifts to him to prove that it's all gone. And if the judge believes he lied, the judge is less likely to believe anything else he says.

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Originally Posted by AK lawyer

Address it to "employee records custodian".



If you can show he lied, the burden shifts to him to prove that
it's all gone. And if the judge believes he lied, the judge is
less likely to believe anything else he says.

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Thank you. Now do I send the subpoena to the ex or his lawyer for his docs?

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Originally Posted by Marciebevans

Thank you. Now do I send the subpoena to the ex or his lawyer for his docs?

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I's going to depend on the court rules for the state in which you are located. If you are unsure how your local rules work, you really need an attorney.

But if you want to subpoena a non-party such as the employer (I'm assuming this is what you are asking), I would send your ex's lawyer a copy of the subpoena you need to have served. In many jurisdictions, for a records deposition (as opposed to a subpoena for trial) it's required that you give opposing counsel notice of your intent to take a deposition before a subpoena will issued by the clerk. Again, check your local rules.