'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.
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