First, it is best to try and get the cell phone company to retain the content of the text messages by sending a letter to the carrier explaining that the text messages are evidence and must be preserved.
When Someone Uses a Web-Based Email Provider
It is wise to have an attorney draft and send the letter, citing the relevant provisions of the Stored Communications Act and applicable state law. The letter should be sent certified by overnight delivery.
Fourth, serve the subpoena. This may be tricky depending on what state your divorce is being handled, as the rules for service vary from state to state. First, the recipient of the message will have a copy of the text message which might be you. You can print off the text messages and produce those as evidence. This can be accomplished a number of ways.
Social Media in Divorce | Michele Lowrance | Pamela Hutul
That is helpful in some situations, such as domestic abuse cases where one party sends hundreds of text messages to their spouse or significant other to harass or threaten them. I live in NJ and have every reason to believe my spouse is cheating.
Proof would be in his phone records. However, I'm looking to subpoena these records and have definite proof before deciding to file for a divorce.
A: Hello and thanks for your question. I'm sorry you are going through this tough time. Divorce is incredibly difficult, especially when there is adultery involved. I'll try to answer you as best I can, here in this general forum.
With regard to subpoenas, it is possible to issue a subpoena on a cell phone company, but it is not an easy task. Companies such as these have teams of attorneys that handle legal requests such as these and it can take a lot of time and become a large hassle, especially if your subpoena is incorrect, missing information or otherwise faulty.
Free Divorce Seminar
It is not easy even for attorneys to wrangle with cell phone companies, especially in non-criminal cases. On another note, I would suggest that you reconsider filing for divorce based upon adultery.
Of course, adultery is certainly a grounds for divorce here in New Jersey, but it may not be the best for you and it certainly is not an easy grounds for divorce to pursue, financially and emotionally. Firstly, if you do file based upon adultery, you have to name the person with whom your husband is having the affair in your divorce paperwork.
The Growing Problem of Digital Spying in Divorce Cases
They have the right to retain their own attorney to represent them and you or your attorney will have to spend time addressing this if that happens. Also, filing based upon adultery can be emotionally exhausting. You have to prove the adultery happened, in open court, potentially in front of an audience of onlookers, if your case goes to trial. In the long run, remember that NJ is a no-fault state, meaning that the courts do not "punish" spouses for bad behavior such as cheating by awarding the other spouse more money or a larger percentage of assets.
So, calculate what you will really get in the end.
Don't waste court fees, legal fees, stress and anxiety simply because you're angry now. If I were you, I would consider filing based on irreconcilable differences where you simply tell the court that the marriage has broken down and cannot be fixed.