Yes, the other woman can be subpoenaed in a divorce. Courts treat an affair partner the same as any other potential witness: if that person has information relevant to a contested issue, your attorney can compel them to testify, produce documents, or both. The harder question is whether the evidence they hold is worth the effort, and what the subpoena can realistically accomplish for your case.
When a Subpoena Is Actually Worth Issuing
Courts will not enforce a subpoena aimed at public shaming. The information requested has to connect to something the judge is being asked to decide. In divorce practice, that almost always falls into one of three areas.
The strongest reason is proving dissipation of marital assets. If your spouse spent marital money on the affair partner through gifts, vacations, rent, or other expenses that did not benefit the marriage, a court can account for that during property division. The affair partner often has direct knowledge of those expenditures, and their bank statements, Venmo history, and credit card receipts can document exactly where the money went. When a dissipation claim succeeds, the judge can reduce the offending spouse’s share of marital property to reimburse the marital estate.
Spousal support is the second area. Roughly 20 states consider fault, including adultery, when deciding alimony. Georgia bars a spouse whose adultery caused the end of the marriage from receiving alimony at all. Virginia, North Carolina, Florida, Connecticut, and South Carolina also weigh marital misconduct, each in their own way. Even in no-fault states, judges often make exceptions when marital funds were drained by the affair.
Child custody is the third. If the affair partner has spent time around your children, their character, criminal history, or behavior can become relevant to a custody determination. This angle is narrower than the financial one, but judges take it seriously when a child’s welfare is in play.
A note on the broader backdrop: every state offers no-fault divorce, so you do not need to prove adultery to end the marriage. That is not the same as saying adultery never matters. Spending marital funds on an affair is treated as economic misconduct even in states that otherwise ignore fault, which is why the paper trail usually matters more than the affair itself.
What the Subpoena Can Demand
Two kinds of subpoenas exist, and your attorney may use one or both.
- A subpoena for testimony compels the person to appear and answer questions, either at a deposition before trial or at trial itself. Questions might cover gifts received, trips taken with your spouse, or what the person observed about your spouse’s finances or parenting.
- A subpoena for documents requires the person to turn over specific records: text messages, emails, bank statements, photographs, receipts. The request has to be specific enough that the recipient knows what to look for. A demand for “all communications” over several years will likely be challenged as too broad. A request for “financial records reflecting payments or gifts received from [spouse’s name] between January 2024 and December 2025” is the kind of targeted request courts enforce.
In many cases, both types are combined into one subpoena requiring the person to appear with documents in hand.1eCFR. 16 CFR 3.34 – Subpoenas
How the Subpoena Gets Issued and Served
Your divorce attorney can issue a subpoena without first asking a judge for permission. Under the federal rules and most state equivalents, an attorney authorized to practice in the court where the case is pending can sign and issue a subpoena directly.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena The attorney drafts the document, specifying what the recipient must do, when, and where.
Service has to be done properly. Any person who is at least 18 and not a party to the case can deliver it. Most attorneys hire a professional process server, which typically costs between $20 and $100 depending on location. The server hand-delivers the subpoena to the named person. Some jurisdictions allow service by certified mail, but in-person delivery is the safest route because mailed subpoenas may not be enforceable everywhere.3National Institute of Justice. Law 101: Legal Guide for the Forensic Expert
If the subpoena requires an appearance at a deposition or in court, it must be accompanied by a witness fee. Under federal law, the fee is $40 per day of attendance plus mileage reimbursement at the government travel rate.4Office of the Law Revision Counsel. 28 U.S. Code 1821 – Per Diem and Mileage Generally; Subsistence State witness fees are often lower, commonly $5 to $15 per day. Forgetting to tender the fee can give the recipient grounds to ignore the subpoena.
How the Affair Partner Can Fight the Subpoena
Receiving a subpoena does not leave someone without options. The affair partner, usually through an attorney, can file a motion to quash asking the court to cancel or narrow the subpoena. The motion generally has to be filed before the compliance deadline. Under the federal rules, written objections to a document subpoena must be served within 14 days of receipt or before the compliance date, whichever comes first.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena State deadlines vary. Waiting until after the compliance date almost always waives the right to object.
Courts quash or limit subpoenas on several grounds:
- Lack of relevance. The information has to connect to an actual issue in the divorce. A subpoena designed mainly to embarrass will not survive a challenge.
- Undue burden. If complying would be unreasonably expensive, time-consuming, or disruptive, the court can narrow the request or throw it out. A demand for a decade of financial records when only two years matter is a classic example.
- Overbreadth. The request has to be specific enough that the recipient knows what is being asked for.
- Privilege. Communications protected by attorney-client privilege, doctor-patient confidentiality, or other recognized privileges cannot be compelled.
- Improper service. A subpoena that was not delivered correctly is not enforceable.
The attorney who issues the subpoena has a duty to avoid imposing unreasonable burdens on the recipient, and courts can sanction attorneys who use subpoenas as weapons, including by ordering them to pay the recipient’s legal fees.2Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena
The Fifth Amendment Problem
This part gets complicated. Adultery remains a criminal offense in roughly 16 to 30 states, depending on how you count statutes that were never formally repealed. In Michigan, Oklahoma, and Wisconsin, it is technically a felony. In about a dozen others, including Virginia, Florida, North Carolina, and Georgia, it is a misdemeanor. Prosecutions are rare, but the laws remain.
The Fifth Amendment protects people from being forced to give testimony that could incriminate them in a criminal case, and that protection applies in civil proceedings including divorce. If the affair partner lives in a state where adultery is still a crime, they can refuse to answer specific questions about the sexual relationship on the grounds that a truthful answer could expose them to prosecution.
Invoking the Fifth does not make the subpoena go away. The person still has to appear and can still be asked about financial transactions, gifts, shared living arrangements, and other topics that are not themselves criminal. The privilege is asserted question by question. In some states, the divorce court is allowed to draw an adverse inference from the refusal to answer, essentially treating the silence as evidence that the answer would have been unfavorable.
Protective Orders and Privacy
Even when a subpoena is valid, the affair partner can ask the court for a protective order limiting how the information is used or disclosed. Divorce cases can involve intensely personal details, and courts have broad discretion to keep sensitive material from becoming public.
A protective order might restrict who can see the produced documents, require certain filings to be sealed, or prohibit either party from sharing the information outside the litigation. Protective orders are especially common when the subpoena reaches medical records, financial account details, or communications that also involve uninvolved third parties. The court will not block relevant evidence from being used in the case, but it can control who sees it and what happens to it afterward.
What Happens If the Subpoena Is Ignored
A subpoena is a court order, and ignoring one is treated like ignoring any other court order. The attorney who issued it can ask the court to hold the recipient in contempt. Federal courts have broad authority to punish contempt through fines, imprisonment, or both.5Office of the Law Revision Counsel. 18 U.S. Code 401 – Power of Court State courts have similar powers. Most judges start with monetary sanctions and escalate if the person keeps refusing.
Imprisonment for ignoring a divorce subpoena is rare but not unheard of, and it is most likely when someone repeatedly defies the court after being warned. The more common outcome is a fine large enough to get attention, sometimes combined with an order to pay the other side’s attorney fees for the extra motions that became necessary.
Should You Actually Do It?
The fact that you can subpoena the affair partner does not mean you should. A few things are worth weighing before your attorney files anything.
The subpoena is most valuable when you need financial evidence of dissipation. If your spouse spent $50,000 on the affair partner and you can prove it through their records, that directly affects the property settlement. The effort has a concrete return.
It is far less valuable in a no-fault state when your spouse was not spending marital funds on the affair and custody is not contested. In that situation, the affair partner likely has nothing to offer that changes your outcome, and the subpoena can read to the judge as punishment rather than evidence-gathering.
Judges notice when subpoenas are being used to create drama. One that produces nothing useful can make you look vindictive and undercut your credibility on the issues that actually move the case, like custody and support. The strongest divorce cases rest on financial records and documented facts. If your attorney recommends against the subpoena, hear out the reasoning before pushing forward.