Even in a no-fault divorce state like Georgia, evidence is critical in proving adultery. If one spouse can definitively prove that his or her ex cheated, then the scales may tip in favor of the non-cheating spouse in terms of alimony, child support, and custody matters.
A rapidly growing method of evidence gathering is obtaining electronic communications from cell phones. It is understandable since it meets the guidelines for admissible evidence in Georgia. Cell phone data can take on many forms, so it is important to understand a few key points when devising your strategy.
Rules of Using Cell Phone Evidence in a Georgia Divorce
While you can probably swipe your ex’s smartphone and feverishly screenshot incriminating texts, your efforts may not hold up in a Georgia court room. It is frustrating to think the evidence is so close yet still out of reach. Your divorce attorney can help you gather evidence the right way.
Here are two rules of evidence you should know about:
Obtain Authority to Access Information
Legally obtaining permission to intercept electronic communications is a cornerstone of submitting evidence properly. Just because you have access to your ex’s unlocked phone does not mean it is admissible in your divorce case. Instead, you can hire a divorce attorney to help you follow the proper channels in obtaining cell phone evidence.
The cell phone evidence you provide must be authenticated. In the simplest terms, you need to demonstrate to the court that:
- Your ex is the original author of the communication, and
- The actual evidence you are providing came from the proper source.
The easiest way to prove that your ex is the author of the evidence is by simply getting him or her to admit that fact. It is a big ask. Most people are not willing to incriminate themselves. In fact, it is a constitutionally protected right that they do not have to. Your attorney will use other strategies in an attempt to authenticate the messages if all else fails.
Types of Cell Phone Communications Admissible to Prove Cheating
All divorce proceedings that involve requests for financial support and asset division go through a phase known as discovery. Discovery is the exchange of information between two parties. It is at this point that you formally request that your ex hands over his or her cell phone data.
Here are a few common types of cell phone communications that can be admitted as evidence during a divorce in Georgia:
Text messages are a popular choice in proving adulterous behavior in Georgia. Your attorney will ask your ex and his or her attorney to preserve text message evidence. Since text messages are discoverable, you have every right to inspect them.
If your ex’s attorney objects to your request, then your divorce attorney will have to file a subpoena ordering the texts to be produced. The request can be made to your former partner and his or her cell phone carrier simultaneously. Keep in mind that the opposing side can fight your request to the end, so your subpoena could be denied.
Hidden Cell Phones
Many cheating spouses think they are getting away with adultery by getting a second cell phone line, but they could also be setting themselves up to exposure in divorce court. Take a look around vehicles and other common areas for strange cell phone bills and unusual charges to your bank account from a wireless carrier. It could be a piece of key evidence in your divorce negotiations.
Social Media Communications
Last but not least, social media may be a treasure trove that proves your ex was cheating on you during the term of your marriage. Be aware that you must have reasonable cause to ask for these records. It is unduly burdensome to request all data from all social media accounts on your ex’s behalf.
Instead, you demand records be produced from sites you believe he or she was using to communicate with his or her paramour. It gets a little more complicated than that, so having a divorce attorney who is willing to comply with your evidence requests is critical to your success.
Hire a Georgia Divorce Lawyer to Subpoena Evidence
Electronic records are highly protected by our public court system. Fighting with your ex’s lawyer on your own can produce unwanted results. Have someone in your corner who is willing to ask the tough questions and advocate on your behalf to the judge.
Our Georgia divorce lawyers have the experience and knowledge to gather the proper evidence regarding your adultery case. Whether it is requesting or denying, the team at Charlton & Glover, PC is ready to help. Learn more about our team as we get to learn about your goals. Schedule a free, no-obligation consultation by calling (770) 993-1005 or sending us a quick note through our contact form.