When going through a divorce, a concern of many clients is providing the court with enough evidence to support their claims. It is important to remember during this process that evidence from your cell phone communications can be admissible in court. This can greatly hurt or help an individual in their divorce proceedings, due to the sensitive nature and amount of evidence that may be found within their cell phone. If you are going through a divorce, ensure you are properly represented with an experienced Orlando Divorce Attorney to ensure proper evidence is gathered to support your case.
A cell phone can be your greatest asset, as well as your largest hindrance. A cellphone contains information as to your personal conversations, relationships, interests, schedules, and even to an extent an individual’s true personality. Therefore, your own and your spouse’s cell phone can become a large part of the discovery process during litigation. The information retrieved from a cellphone relating to a divorce can provide evidence of marital misconduct, dissipation of funds, extramarital affairs, unstable behavior, or evidence of abuse. This evidence can be used to support claims of alimony, child custody, equitable distribution, and injunctions for protection from domestic violence.
Specifically, in past Florida cases, text messages between parties have been offered to present evidence for of an existing timesharing schedule, or dates that exchanges of a minor child occurred. J.N.S. v. A.M.A., 194 So. 3d 559 (Fla. 5th DCA 2016); Buschor v. Buschor, 2018 WL 3672309 (Fla. 5th DCA 2018). Therefore, if your partner has attempted to claim different schedules or missed exchanges, you may present evidence to refute these claims in the form of text messages or call logs on the dates in question. Text messages and phone call logs have also been presented in court for contempt or enforcement actions, as well as injunctions for protection from domestic violence. Greene v. Greene, 242 So. 3d 526 (Fla. 1st DCA 2018); Auguste v. Aguado, 2019 WL (Fla. 3d DCA September 25, 2019); Ashford-Cooper v. Ruff, 230 So. 3d 1283 (Fla. 1st DCA 2017); Leal v. Rodriguez, 220 So. 3d 543 (Fla. 3d DCA 2017); Mitchell v. Mitchell, 198 So. 3d 1096 (Fla. 4th DCA 2016). The court has been able to read a text conversation, or see the number of calls made and apply it to the facts to determine the fear a party may be in, or the violation of an existing order.
In order to gain access to your spouse’s phone records, you will need to make a formal discovery request directly to your spouse, or a subpoena to the phone service company. However, messages that you are a direct party to will not need to be requested, as you have copies of them yourself. You may not obtain any cell phone communications through manners that are in violation of Florida Statutes, such as wiretapping. Evidence obtained through illegal means will be inadmissible in court and you may also face criminal penalties. However, legally obtained evidence of this nature is admissible. Although many question the admissibility, as out of court statements are generally declared as hearsay, within family law, cell phone records and messages are generally admitted under the hearsay exception of statement by a party opponent. Therefore, they may be admissible in court.
It is important to know and understand the value and accessibility of your phone records by your spouse and vice versa. Therefore, employ a knowledgeable Orlando Divorce Attorney to walk you through this process and assess the evidence necessary to your case.
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