Archive for Saturday, March 10, 2001

Husband may need subpoenas

March 10, 2001


My wife and I are in the midst of divorce litigation, and I believe that she is being unfaithful to me and that she drinks excessively. This concerns me because she has temporary custody of our two children, ages 5 and 7; however, I can't prove it.

Even before I left home, I thought she was drinking, but I could never find any checks or receipts for alcohol. I also believe that she contacts her friend by telephone regularly, but my telephone bills have shown nothing out of the ordinary and I don't know whether she has a cell phone.

Is there any way to get some information without a detective?

Proving telephone communications between your wife and a third party may be difficult, but not impossible, and you may have several options available to you depending on the circumstances.

If your wife has a cellular telephone and you know her number or service provider, your lawyer can subpoena the billing and activity records directly from the telecommunications carrier. At the same time, if the person you suspect of seeing your wife has a cellular telephone, the same records are available.

However, if, for example, the alleged paramour has purchased two cellular telephones with different numbers (one for him and one for your wife), proof of communications may be more difficult, especially if your wife uses this phone exclusively to call his cell number.

Depending on where you live and the type of local telephone service you have, local calls from your home telephone may be available. Check with your local telecommunications provider to determine the type of service and whether records of local calls are maintained. If so, they are also available by subpoena and will show both incoming and outgoing local calls.

But if your wife is using prepaid telephone cards, which can be purchased just about anywhere, chances of getting any information are slim unless you find the card itself. Most of these cards are invalid after the purchased time is used up, but some can be "recharged" by using a credit card. If you find the actual card, which has a numeric code, usage records may be available by subpoena.

The drinking issue might also be solvable by subpoena. Today, many people register at grocery stores to receive bar coded cards with which discounts can be secured. The purpose of these cards is to give the grocery chain a pattern of purchases which are used in both inventory and marketing efforts. Since almost all grocery stores sell beer and wine and some sell liquor, if your wife uses a discount card when she goes shopping, her purchases will be available from the grocery chain by subpoena. By getting and reviewing her purchasing records, you will be able to determine just what she is purchasing and when. And if she is buying prepaid telephone cards at the grocery store, you will know it.

SoloFact: In most states, it is not necessary to find two people in the act of intimacy to prove adultery.

Proof can consist of showing the opportunity to be intimate for example, two people enter a motel room or an apartment and remain there for several hours and the inclination to be intimate that is, evidence of the couple walking hand in hand or letters that have passed between them. Evidence can be direct or circumstantial, but it must be clear and convincing. A pattern of regular communications by telephone as shown by records may lead to evidence of infidelity.

Your lawyer can explain the applicable rules in your state.

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