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Can you get cell phone records or text messages in a Wisconsin divorce?

When people suspect that their spouse is cheating, they often ask if we can obtain their cell phone records to prove it.

Phone records won't prove much

If you are looking for documentation regarding telephone calls, this is readily available via subpoena but meaningless. A phone call proves nothing. However, now we are seeing more requests to obtain copies of text messages. While it seems like this would be a simple task involving a subpoena and a small fee, the truth is that it is nearly impossible to preserve and obtain text messages directly from the carrier.

Text message storage

Most carriers only save text messages for a period of 48 hours. After this time, the text messages are forever purged from the server or database. The amount of storage required to save every text message sent from every cell phone user prohibits retention of these messages for more than 48 hours. In order for the carrier to save messages for more than 48 hours, they need to be aware of the requirement to preserve the messages.

Every carrier differs in their expectation, but to save messages it requires that an attorney send a preservation letter to the carrier. This preservation letter informs the carrier that it is necessary for them to retain the messages for greater than a 48 hour period. Most carriers will only “preserve" the messages for two weeks. If it is necessary to preserve texts for a longer period of time, numerous preservation letters are required.

Some carriers will honor preservation letters sent from an attorney. Other carriers require a subpoena issued or signed by a judge or court official. You would have to contact your carrier’s legal department on their requirements for preserving and certifying text messages.

Justification for a subpoena for text messages

A subpoena of text messages requires a proactive approach which, depending on your reasons for the text messages, may prove to be cost prohibitive or irrelevant. The question then becomes, why do you want these records? In Wisconsin, we have a no fault state. It is completely irrelevant in a divorce that your spouse was cheating in your case.

Alternatives

If you suspect your spouse is cheating, the appropriate response is to get into counseling, either individual or marital, immediately.

If counseling does not work or is not an option, then you need to consider whether you want to file for divorce. If you file for divorce, you need to accept that Wisconsin is a no fault state and move on to the issues in your case rather than focus on adultery or alleged adultery which is not going to be relevant in your case.

Focus on making sure you that you and your children are protected in your divorce and that you obtain the best possible result for yourself. Hire an experienced divorce attorney to assist you in this.

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