A cellphone provides an easy form of communication for individuals who are carrying on an extra-marital affair. A spouse can keep in touch with the other woman or man through text messages discreetly and at any time. On the other hand, cellphones provide an excellent source of evidence of infidelity. It may be possible to collect evidence such as the [highlight]content of text messages, contact information for the other man or woman and photos.[/highlight] Those who suspect their spouses of carrying on an affair should at the outset try and have an open discussion about the matter.
Where to look for evidence
If the suspicions remain following the discussion, the next step is to check the person’s cellphone for evidence.
The phone bill should be looked at to see if there are any unknown numbers. Entries in the phone’s contact list that are different from typical contacts in the phone may be worth looking at as well. For example, if the person’s business contacts list addresses plus home and work phone numbers, but there is an entry that lists only one number, that entry might be considered suspicious.
If divorce proceedings have been initiated, it is a good idea to ask the opposing counsel to preserve all of the client’s emails and text messages so that no evidence is lost. Text messages are one of the most common types of evidence in divorce cases. Depending on the jurisdiction, it might be possible to subpoena cellphone records in order to obtain text messages. It also is possible to print out text messages that a spouse has received.
If a party wishes to obtain text messages sent or received by the other, a lawyer may subpoena the messages from the cellphone’s service provider. The opposing party may also take legal steps to try and deny access to the information.
Second, or secret, cell phones
Some spouses purchase second phones to communicate with the person they are cheating with. Many hide these second phones inside their cars in places such as inside the glove box or under one of the seats. In addition, strange or suspicious bills may provide evidence of a secret or hidden cellphone.
Authenticating the evidence
Whenever evidence is presented in a divorce case, it must be authenticated. In relation to electronic evidence such as text messages, photos or email, this means that there must be proof that the opposing party was the author of the electronic communication.
- The most straightforward way to accomplish this is for the person to admit that he or she authored the communication.
- Another method is to have an eyewitness confirm seeing the person write the text or email.
- A third method is through the use of circumstantial evidence. For instance, if an email contains information that only the alleged author would know, then it is reasonable to conclude that the individual is the author.
The reason authentication is necessary is that it is possible for a third party to use an individual’s phone or email account to send a message. Without proper authentication, the court may be hesitant to attribute the communication to the alleged author.
In addition to cellphone information, evidence of an affair can be gathered from a spouse’s home or work computer, social media sites, Internet dating sites and Internet search histories. A subpoena may be needed to obtain electronic evidence from a specific computer or cellphone.
Social media is public by nature and many courts have held the opinion that social media is discoverable. There are three main reasons why courts tend to view social media in this way.
- First, individuals who post content on social media sites have no expectation of privacy, and thus there is no privacy violation.
- Second, social media content does not violate any privilege.
- Third, social media content can be relevant to a divorce case.
Authority to access information
There are both federal and state laws that prohibit the interception of electronic communications such as text messages and emails. Before an individual accesses a spouse’s personal computer or cellphone, it is important to establish whether or not he or she has the legal authority to do so. A person who obtains electronic communications without the proper legal authority may be subject to legal sanctions and any evidence that was collected may be subject to exclusion.