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Divorce | Family

Can Divorce Lawyers Subpoena Phone Records?

9 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

While some divorces are amicable and relatively peaceful, countless others become messy. That’s especially true in divorces where one spouse feels the need to subpoena phone records.

Divorce lawyers can ask for phone records to access information that could be relevant to a divorce proceeding. In many cases, spouses seek otherwise hidden information to prove that their soon-to-be-ex is involved in unseemly conduct like hiding money, having an affair, or endangering a child. 

Since this information can significantly affect the outcome of a contested divorce, most states allow spouses to subpoena phone records, text data, social media messages, and other electronic data during a divorce. On the other hand, it’s also possible for a capable attorney to block a subpoena and protect your privacy. If you believe that your spouse is hiding important information during a divorce, it’s important to let your lawyer know.

What Is a Subpoena?

A subpoena is a legal request to one party (or both) requiring they produce information relevant to the proceedings. “Subpoena” is a Latin term that means “under penalty.” That means that any person receiving a subpoena must comply with its terms. If they do not, they risk both civil and criminal penalties. 

Generally, there are three kinds of subpoenas in divorce cases. They include:

  1. Subpoenas for personal appearances in a divorce proceeding
  2. Subpoenas for personal appearances and production of specific information 
  3. Deposition subpoenas to produce business records

It’s important to note that divorce subpoena laws vary slightly from state to state. If you are unsure of your state’s divorce subpoena guidelines, it will help to contact an experienced family law lawyer to discuss your case in detail.

Can an Attorney Subpoena My Phone Records?

Yes, an attorney can subpoena your phone records. Divorce lawyers typically subpoena phone records during the discovery phase, which occurs before a divorce trial starts. A lawyer or spouse may subpoena information during this time to gain more insight into the opposing party’s financial situation and other sensitive issues. 

Subpoenaed phone records serve multiple purposes in a divorce proceeding. In many cases, it is used to:

Regardless of where you live, you can’t ignore a subpoena. If you want to protect yourself, the best thing you can do is to use secure messaging platforms, update your passwords, and keep your phone in your possession. That way, your ex will have no choice but to use a subpoena to access sensitive information.

Can My Phone Records be Subpoenaed Without My Knowledge?

No, subpoenaed phone records in divorce cases require the spouse whose phone records are being subpoenaed to be notified. There is no other way to do it. Federal laws prohibit telecom service providers from providing certain kinds of information. For instance, they can provide “records concerning the communication” but not the actual content within the communications. 

You don’t have to agree with the subpoena for it to go forward. If one spouse believes the other is hiding relevant information, their divorce lawyer can easily request your records. 

Once the records have been subpoenaed, a judge will decide if the information is relevant to the divorce case. If it is, then the evidence will be admissible. If it is not, the court will not use the information to determine the case’s outcome.

How Far Back Can You Subpoena Text Messages? 

The content of text messages can only be used in criminal proceedings. Civil cases like divorce don’t allow the content of text messages to be subpoenaed. However, text messages obtained legally may be admissible depending on the circumstances of the divorce. 

Companies like Verizon keep specific communications histories of their customers for a limited time. The records usually contain information like:

  • Date and time of the subpoenaed communication 
  • Duration of the communication 
  • Phone number the text was sent to and received from 
  • The amount of data the text used 

These records are usually kept for about 1.5 years. Some companies and digital services, intentionally or not, will keep text messages for different periods of time.

Technically, you can ask to subpoena text messages for as far back as they are relevant. However, you might not be able to get them. If you intend to subpoena particular text messages in your divorce case, you should be mindful of these time limitations. 

Can a Lawyer Subpoena Text Messages That Have Been Deleted?

As mentioned above, a divorce lawyer can’t subpoena the actual content of a text message. However, if a spouse deletes a text from their phone, that communication record can still be subpoenaed. If the telecom company deletes (or archives) the records, they cannot be retrieved. 

For this reason, it’s essential to request a subpoena as early as possible. Otherwise, the information may be lost forever. 

Can Phone Records Be Used to Prove Adultery? 

In some cases, yes. Cell phone records can be used to prove adultery in a divorce case. However, adultery is grounds for divorce only in states that allow “at-fault” divorces. 

Sometimes a spouse may accuse their partner of cheating to prove untrustworthiness in child custody or spousal support negotiations. If evidence of adultery is uncovered in the phone records, it could play a vital role in a judge’s decision-making process.

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How to Subpoena Phone Records

The subpoena process can vary slightly depending on your state and the telecom company that holds the data. Generally, obtaining a subpoena in a divorce case entails the following:

  1. Consulting with your divorce lawyer to discuss your case
  2. Identifying your cause for seeking the subpoena
  3. Knowing what companies to contact and their subpoena process
  4. Completing a blank subpoena form which can be found online or at your court clerk’s office
  5. If approved, serving the subpoena to your spouse

If you have a valid reason to subpoena the phone records of your spouse, a judge will likely approve your request. Consulting with an experienced divorce lawyer helps ensure that you complete all necessary steps in the process. 

How Much Does it Cost to Subpoena Phone Records?

The cost to subpoena phone records depends on several factors. Telecommunication companies typically charge an upfront rate plus an additional fee for each phone record they produce. 

This can be as low as $25 or up to thousands of dollars. The costs to subpoena phone records generally depend on the complexity of the data, the company you are subpoenaing, and many other factors. Also, if you are working with an attorney (which most professionals recommend), you can expect to pay a lot more in legal fees. 

How Long Does it Take to Subpoena Phone Records?

According to U.S. Criminal Code 18 USC § 2703, telecommunications companies must keep phone records for at least 180 days. However, in many cases, companies do keep phone records for much longer. The amount of time a record is kept (past 180 days) depends on the company and its policies.

If you have a subpoena for phone records that goes beyond 180 days, it will help to contact the phone company to confirm if they have retained the records for longer. If you are just subpoenaing call logs, cell phone companies may keep that information longer. However, call logs typically don’t offer much information. 

Can You Subpoena Snapchat Records for a Divorce?

Yes. You or your lawyer can subpoena records from social media platforms like Snapchat, Facebook, or Instagram. In some cases, you can just ask your spouse to supply their messaging or posting history. However, if they refuse, you can still subpoena the information. 

Many divorce lawyers don’t need to subpoena social media communications. That’s because most posts are available publicly. While it may be challenging to obtain messages from Snapchat and similar platforms, it’s certainly possible. 

If your social media records are being subpoenaed, it’s in your best interest to comply. Erasing your account after the subpoena is issued may lead to penalties. 

What Else Can Be Subpoenaed in a Divorce?

Cell phone records are not the only thing that can be subpoenaed in a divorce. Divorce lawyers can subpoena other kinds of information to uncover adultery, hidden assets, or lavish spending. Generally, the following can be subpoenaed in a divorce case, but not limited to:

  • Receipts, balance sheets, and bank account disclosures
  • Expenses related to child care or medical expenses
  • Proof of one spouse having more money than they claim 
  • Personal documentation like journal entries, calendars, etc. 
  • Job history and application history 
  • Police reports 
  • Property appraisals

Subpoenas can be a useful tool when one or both partners are not honest about information relevant to the divorce. If you receive a subpoena, it’s in your best interest to comply. If you do not, you could face civil and criminal penalties. 

Contact an attorney if you are uncomfortable with the information being requested or you don’t think it’s relevant to the case. While they likely can’t stop it, they can help you defend yourself and shine a light on your side of the story. 

Should I Hire a Divorce Attorney?

If you are subpoenaing your spouse’s phone records or your information is being subpoenaed, it’s predictable that your divorce case will not be easy. People facing complex, contested divorces should consult with a divorce lawyer to ensure their rights are protected and they are adequately represented in a legal proceeding. 

A family law attorney can ensure that you subpoena the correct records, follow the process correctly, and uncover any information relevant to your case. Seeking a divorce without a lawyer can lead to an unfair and lopsided outcome. Furthermore, you risk losing more than you should and not receive what’s rightfully yours. 

Many people would like to subpoena phone records but are intimidated by the process and legal fees associated with it. Fortunately, there is a way to retain legal counsel at an affordable price.

Most divorce lawyers charge between $2,500 – $3,500 upfront, plus an additional hourly rate on top of that. While the cost of their services is affordable for some, the majority of Americans find such high legal fees difficult to afford. 

With Unbundled Legal Help, you can hire a divorce attorney to take care of your subpoena (or other complex matters) while you keep the option to save money by handling other services on your own. Rates for Unbundled divorce lawyers start as low as $500 – $1500, with a free consultation. If your case is more complex, lawyers in our network can also provide full representation at affordable rates.

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