“Everything you say can and will be used against you in a court of law.” We are all familiar with this phrase and have heard it dozens of times in movies, in TV shows, and maybe once or twice during a routine traffic stop. However, while this phrase often evokes images of interactions between police officers and criminals, it does not immediately bring forth the image of a family court room. Yet, just as with criminal cases, what you say to your spouse while your divorce case is pending and even after it has been finalized can be used against you in property division and child custody proceedings. This is even true of text messages.
For instance, if your soon-to-be-ex-spouse admitted to spending the family money on a trip to Barbados with his mistress in a text message, that would be plenty of ammo for you to recover that lost money in your portion of the divorce settlement. However, you cannot just tell the judge, “He admitted to it in text.” You need to be able to show proof, in the form of official records. Because the judge wants to know that you did not doctor text message records, he or she will want records from the cell phone carrier itself, which you can obtain via a subpoena.
Now, it is important to bear in the mind that cell carriers generally only retain text messages for two to three days max, so if your former spouse does admit to wrongdoing in a text, you need to file for the subpoena either that very same day or the next. Secondly, thanks to the federal Stored Communications Act, most cell carriers will not release the data without first receiving consent from the cell phone subscriber. If you and your spouse still share a cell plan, that makes things exponentially easier; if you do not, you may have trouble getting the proof that you need.
With those two things in mind, here is what you need to go about getting text messages by subpoena:
- Retain the Help of a Lawyer: First and foremost, reach out to a knowledgeable Dallas divorce lawyer who knows how to go about subpoenaing text messages. The process begins with a letter to the carrier that explains that because the text records will be used in a divorce case, they need to be preserved for longer than normal. The letter should cite the relevant provisions of the Stored Communications Act and applicable state laws, and should be sent via certified mail overnight.
- Prepare the Subpoena: Next, your lawyer will prepare the subpoena that aims to obtain the relevant text messages.
- File an Ex Parte Motion: Once the subpoena is prepared, your attorney should file an ex parte motion on your behalf, which is a temporary order pending a formal hearing. The courts will then order your spouse to sign a notarized consent to release the text messages so that they can be used as evidence in your divorce hearing.
- Serve the Subpoena: Finally, it is time to subpoena the text messages. Your attorney will serve the subpoena to the cell carrier to ensure that the records are properly preserved.
If subpoenaing the texts is not an option (maybe you did not think to subpoena them until after your spouse has made it clear that he intends to make the divorce hard on you), you may be able to get away with printing off records of the text or even demanding that your spouse procure his phone as evidence during the hearing. These alternative methods may or may not work, depending on who is presiding over your case and what type of foundation you laid prior to making such requests.
Apple makes it easy for subscribers to preserve their text messages with an app called iExplorer, which transfers text files and creates printable pages, which may be more reputable than screenshots.
A Dallas Divorce Attorney can Help You Subpoena the Evidence You Need
At Udeshi Clark and Associates, our Dallas divorce lawyers are familiar with state and federal laws and can help you subpoena whatever evidence you feel will help your case along. If you want to ensure a successful outcome to your divorce case, reach out to our legal team today to schedule a private consultation.