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Can Phone Records Be Subpoenaed in a Divorce?


A divorce can be difficult or messy depending on the couple and the circumstances. One spouse may need to search for private information on another spouse’s electronic devices in a contested divorce case, for example, to prove something such as hidden assets, lavish expenses or an affair. In Colorado, it is legal for one spouse to subpoena another’s phone records during an official divorce proceeding.

Subpoenas and Divorce Cases

A subpoena is a legal order demanding someone to produce documents or records or appear in court. Divorce attorneys use subpoenas to gain access to information that could be important to the case. This includes private information such as personal emails or text messages. In a divorce case, both sides of the divorce can use subpoenas to force the other to produce information, including cell phone records.

What Takes Place During the Discovery Phase?

Subpoenaing cell phone records from phone companies often takes place during the discovery phase of a divorce. This is the step right before a divorce trial, in which both sides have the chance to learn what the other side knows. Each spouse can obtain information, evidence and documents from the other side, often through subpoenas and depositions. The discovery phase can better prepare each side for what to expect during the trial.

How Cell Phone Records Can Be Used in a Divorce

Subpoenaing cell phone records in a divorce case can serve several purposes during a contested divorce case. Many spouses do this as a means of proving an affair, for example. Although Colorado is a no-fault divorce state, meaning adultery will have no grounds in establishing fault for a divorce, one spouse could use proof of an affair to prove a point during decisions such as child custody or spousal maintenance. Another common way to use cell phone records during a divorce is to prove the spouse’s financial status. Cell phone records could reveal offshore accounts, hidden assets or extravagant spending by a spouse who is claiming not to have much money, for instance.

Where to Look for Evidence

If your lawyer is subpoenaing your spouse’s cell phone records during a divorce case in Colorado, he or she could be looking for evidence of infidelity, fraud, hidden marital assets or other misconduct in several key places. The most common are text messages, social media accounts and photographs. Your lawyer can demand full cell phone records that show the phone’s entire history – including deleted items – in most cases.

Text Messages

Today’s cell phones are extremely advanced and capable of keeping a great deal of data. Text messages are a mainstay when using a person’s cell phone records during a divorce case. Texts between your spouse and someone else could provide incriminating evidence, such as suggestive texts alluding to an affair or texts about vacations or gambling. Your lawyer may also search through emails, group chats and instant messages. It may be useful to look at the spouse’s photographs, videos and social media accounts for possible evidence of wrongdoing as well.

Secondary Cell Phones

If your spouse is knowingly doing something wrong, he or she may try to hide the misconduct by purchasing and using a second (secret) cell phone. You or your lawyer should look for a second phone line in your spouse’s name and subpoena these records as well.

How to Protect Yourself

You cannot fight a subpoena during a divorce case in Colorado. You lawfully must comply with the court order to produce documents such as your cell phone records, or else be held in contempt of court. The best way to protect yourself is to keep your phone secure and regularly change your passwords so your spouse has no choice but to issue an official subpoena to access your information.

Consult With Your Divorce Attorney

Colorado divorce cases can be difficult to navigate on your own – especially if you or your spouse wishes to subpoena cell phone records. If you are going through a divorce in Fort Collins, contact an attorney near you for assistance. A divorce lawyer can help you protect your rights.

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