Digital Discovery in Divorce – Part One: Cell Phone Records in Divorce


Like it or not, we find ourselves immersed in the digital age. As with many technological advances, instead of making our lives easier, more efficient, and less complicated, they have made our lives more stressful, difficult, and demanding. Because divorce is a part of life for many, technology has necessarily had an impact there as well.


Here are some sobering statistics regarding our relationship with our cell phones:

  • 74% of Americans feel uneasy leaving their phone at home.

  • 71% of Americans say they check their phones within the first 10 minutes of waking up.

  • 53% say that they have never gone longer than 24 hours without their cell phone.

  • 47% consider themselves “addicted” to their phones.

  • 35% use or look at their phone while driving.

  • 70% of Americans check their phones within five minutes of receiving a notification.

  • 64% use their phone on the toilet.

  • 61% have texted someone in the same room as them before.

  • 48% of people say they feel a sense of panic or anxiety when their cell phone battery goes below 20%.

  • 45% say that their phone is their most valuable possession.

  • 43% use or look at their phone while on a date.


Can a divorce lawyer get cell phone records?

It’s no wonder that cell phones play a prominent role in many divorce proceedings – they are a major factor in our lives. Cell phones contain scores of data on all sorts of things that are relevant in a divorce proceeding: assets, finances, relationships, conduct, and whereabouts, just to name a few. Cell phones may contain evidence of adultery, hidden assets, behavior that impacts one’s fitness as a parent, factors influencing custody, and other misconduct. Rarely do parties to a potential divorce consider the digital trail that they are leaving. And even when they do, their conduct is rarely significantly altered.


Can your phone records be subpoenaed in a divorce?

Many think that deleting harmful evidence from their phones will protect them. However, that is rarely the case. Items deleted from a cell phone can usually be recovered either from the phone itself or its backup, which is usually in “the cloud.” Even if a cell phone is destroyed there is substantial evidence that can be obtained from the cell phone provider via subpoena. Again, even if that information was “deleted” from the phone. Efforts to cover, obfuscate, or destroy one’s digital tracks (evidence) rarely play well to a court.


Unfortunately, it isn’t simply actual evidence that makes its way into divorce proceedings but also “fake” cell phone data. Just a little poking around the internet will uncover all sorts of techniques for creating fake texts, for example, and even fake phone “records.” However, good forensic experts can uncover these attempts as well, using actual data from a cell phone and a cell phone service provider or other tricks of the trade.


Divorce is serious business. Dabbling in these important evidentiary issues can have profound and lasting consequences. The divorce attorneys at Watson McKinney have a host of experts at their disposal that they regularly use in divorce cases. They can be used offensively and defensively. We are ready and willing to help you during one of life’s most trying times. Contact an experienced divorce lawyer at Watson McKinney today.