Published on: February 12, 2024

Can Phone Records Be Used To Prove Adultery?

Today, the advancement of cell phone technology has brought both benefits and challenges. As our phones become smarter, they also leave digital trails that can help or hinder us, depending on the circumstances. In family court settings, incriminating phone records are increasingly used as evidence in divorce proceedings, particularly when proving adultery.

If you suspect your spouse of engaging in extramarital affairs, their cell phone records can provide crucial evidence. These records reveal call logs, text messages, social media interactions, and GPS location data, all of which contribute to building a case. At the law offices of Juan Luciano Divorce Lawyer, experienced New York divorce lawyer Juan Luciano may be able to help authenticate and utilize this digital evidence effectively in court. Our team of legal professionals may be able to help increase the likelihood of achieving a favorable resolution by strengthening your position with compelling evidence. Contact us today at (212) 537-5859 to schedule a consultation.

Where Phone Privacy Begins and Ends

Phone carriers have privacy policies that protect an account holder from others outside the account, including spouses and family members. A cell phone company would need a court order before releasing any private phone records to others.

But when spouses share a phone plan, these privacy protections no longer apply. As authorized users on the account, both spouses can have access to any records on the shared account. Even if spouses arrange for their own plan at some point, any records during that shared time on the account can be accessed by the other.

Using Phone Records to Prove Adultery

When a spouse suspects adultery, the information in any of their shared phone records can be used against the other. Even if the suspected spouse elects not to provide those records, your attorney can petition the court to get them from your carrier.

But when providers retain records, these typically only indicate the identities of the involved parties and the date and time of the call or text, but not the exact content of the messages. The device itself can often provide more exact records of the content of the communications. Consequently, it is important for a spouse who suspects adultery to preserve message content on their own as much as possible.

Text Messages And Other Data

Today’s cell phones are extremely advanced and capable of holding a remarkable amount of data, similar to a personal computer or laptop.

Any texts between your spouse and another party, photos, emails, group chats, or other communication can be found on a cell phone and provide a great amount of incriminating evidence. A skilled divorce attorney will look at all potential sources of data in order to uncover evidence of adultery.

Secondary Phones

In some cases, an adulterous spouse will try to hide their behavior by purchasing and using a second cell phone for that communication only. You or your attorney should look for any suspicious other phone lines that may be in your spouse’s name.

How to Subpoena Phone Records

If you suspect that your spouse is hiding important information from you during a divorce case, obtaining phone records through a subpoena can be a crucial step to uncover the truth. A subpoena is a legal request that compels a party to provide relevant information for the proceedings, and it can be used to acquire phone records in the context of a divorce.

Typically, the process of obtaining a subpoena starts during the discovery phase, which occurs before the trial. Your attorney can initiate the subpoena process by identifying the grounds for seeking it, determining the appropriate telecom companies to contact, completing a subpoena form (available online or at the local court clerk’s office), and serving the approved subpoena to your spouse. The judge will then evaluate the relevance of the obtained information to the divorce case. 

It is important to understand that while records related to communication, such as date, time, and duration, can be subpoenaed, federal laws prohibit accessing the actual content of the communications in civil cases like divorce. These records are usually retained by telecom companies for around 1.5 years. Therefore, it is essential to be aware of these time limitations if you intend to subpoena specific phone records. Additionally, the spouse whose records are being subpoenaed must be notified.

To ensure compliance with the correct legal procedures, it is highly recommended to consult with an experienced New York divorce lawyer. They can guide you through the process and help you make informed decisions based on the specific laws in your state. Contact the law offices of Juan Luciano Divorce Attorney today at (212) 537-5859 to schedule a consultation. 

How to Subpoena Phone Records Details
Identify grounds and telecom companies Determine the reasons for subpoenaing, such as suspicion during divorce, and identify relevant telecom companies.
Complete subpoena form Obtain the form and provide required information.
Serve approved subpoena to spouse Follow legal procedures to deliver the approved subpoena.
Judge’s evaluation of relevance Judge assesses the relevance and admissibility of obtained information.
Limitations on accessing content and retention Access to actual content prohibited; only communication details (date, time, duration) can be obtained. Phone records retained for around 1.5 years.
Notification requirement Spouse whose records are subpoenaed must be notified.
Divorce attorney in Manhattan

How Cell Phone Records Can Affect Your Divorce

Your divorce will be affected by the information on your phone and the type of divorce. Although there are two types of divorce, each state has its own rules when it comes to divorce. There may be options for a no-fault divorce in New York depending on your circumstances as a couple. A no-fault divorce is when one party does not claim the other was responsible for the divorce. New York is one of the states that has fault divorces which means that one party claims the other caused the divorce.

Your spouse could use your phone records to prove that you were involved in adultery. His lawyer and he may use any evidence that they find to negotiate a better settlement. Your spouse may present evidence to the court if you are unable or unwilling to reach a settlement. It doesn’t really matter what your phone records contain if it’s a no-fault divorce and it’s unlikely that your spouse would try to get your phone records in such a situation.

No Fault Divorce Options

The no-fault divorce in New York presents a straightforward option for couples looking to separate without the complexity of proving wrongdoing. Rather than navigating the challenging process of demonstrating grounds such as adultery, spouses can file for a no fault divorce by simply stating that their marriage has irretrievably broken down for at least six months.

This method requires significantly less proof, making the divorce process more direct and often faster. The shift away from establishing fault allows couples to focus on the essential legal matters at hand, such as:

  • Division of marital property
  • Spousal and child support
  • Custody and visitation rights

Choosing a no-fault divorce in New York streamlines the dissolution of marriage, lessens the emotional burden, and can lead to a more amicable resolution. It is a practical choice for those seeking to avoid the additional strain that often accompanies a fault-based divorce.

Other Ways That Evidence of Adultery Can Hurt Someone During a Divorce

Not only is adultery grounds for divorce, but it can also be used in other considerations made by the court during a divorce.

Evidence of adultery may be considered when the court weighs a spouse’s “moral fitness” in child custody matters. If the evidence suggests that the individual’s behavior has had a negative impact on the child, the court may decide to limit that person’s custody and parenting time.

Evidence of adultery can also weigh against the adulterous spouse in matters of marital property division. Although New York is an equitable distribution state, if evidence shows that your spouse has used marital assets for gifts, rent, or other expenses for the non-marital relationship, the court can consider this when awarding partners their share of the marital assets during property distribution.

If you are considering a divorce, there are many important matters to think about. It is important to get the skilled legal advice of an experienced New York divorce attorney. At the law offices of Juan Luciano Divorce Attorney, we have represented clients through some of the most challenging times of their lives. Call us at (212) 537-5859 or contact us through our website for an initial consultation to discuss your needs.

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