Subpoena of cell phone


(Sandy) #1

Going through divorce husband cheated. Can I have his cell phone subpoenaed to get the necessary proof of affair? At what point do I ask for this? His mistress will be sued for alienation of affection. At what point can I subpoena her cell phone? Once I get my husbands phone he will give her a heads up as to watch out you’ll be next. Will it matter if the evidence is deleted on there phones? Also can numerous UTI’s during the marriage be used as evidence to him having sex with other women?


(Anna Ayscue) #2

You would first need to send both your husband (assuming you are now separated) and his paramour spoliation letters which demand that the recipient of the letter not destroy any evidence on any device (emails, text messages, etc.) until all issues and litigation are completed.

Generally a subpoena to a cell phone provider will not work unless you’re law enforcement. However, once litigation is filed in your matter, you can send formal discovery requests requiring the opposing party to produce certain documents (called a request for production of documents and things). You would include all emails, text messages, phone records, etc. to help you prove your case.

Numerous UTIs might strengthen your case, but this should just be one bit of evidence among all the other evidence.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


(Sandy) #3

Yes we are separated & I did send spoliation letter to husband but not to paramour. Should I send letter to paramour now or would it be too late? What if the paramour cleans up her social media accounts where she & my husband were conversing & doing a lot of FaceTime videos? Then who would be responsible in retrieving those deleted items from husbands phone & paramours? I have emails from 2nd wife explaining certain aspects of their marriage which shows a pattern of behavior that relates to his behavior with me in our marriage. Can any of that be used?


(Anna Ayscue) #4

You can still send a spoliation letter to the paramour now. You may be unable able to gain access to any evidence that was deleted prior to the paramour receiving the spoliation letter.

Your husband’s pattern of behavior will not be useful to your case against him. For alimony purposes, you must prove that your husband engaged in illicit sexual behavior during the marriage. How he treated a prior wife will not help you prove this.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.