Can I subpoena my wife’s phone records if we are still married?

Question:

I have a feeling my wife is having an affair. Can I get a subpoena while we’re married for her cell phone records to prove her infidelity?

There is no divorce pending, but I would like documentation in case we do get divorced.

Answer:

Prior to filing for divorce you cannot compel your spouse to turn over her phone records through the use of a subpoena, as you have no case pending with the court.

With that being said, a subpoena is a writ that commands a person to either appear and give testimony or to produce or permit inspection and copying of documents or other tangible things, or both. A subpoena may be issued by the court clerk or an attorney.

In the state I practice in (Texas), the subpoena must meet the following formal requirements: (1) issued in the name of “the state of Texas,” (2) include the style and cause number of the suit, (3) identify the court where the suit is pending, (4) state the date the subpoena is issued, (5) identify the person to whom the subpoena is directed, (6) state the time, place and nature of the action required of the person being subpoenaed, (7) identify the party who secured the subpoena, (8) include the text of Texas Rule of Civil Procedure 176.8, (9) be signed by the issuer, and (10) command a person to either attend and give testimony or produce documents, or both. Tex. R. Civ. P. 176.1 and 176.2.

The cost to file a subpoena and have it served will depend on the court fees in the county in which your case is pending. The court your case is pending in may also have additional local rules which you will need to comply with as well.

After the subpoena is in the proper form, in most cases you will need to have it served by the sheriff, constable or other person who is not a party and is at least 18 years of age. Tex. R. Civ. P. 176.5(a).

As an aside, when securing documents from a party, it is not necessary to serve a subpoena. A party may secure the production of documents through the discovery process. Texas Rule of Civil Procedure 196 provides the discovery procedure for doing so. However, in order to conduct discovery you must first file for divorce.

For more information please contact a Texas family law attorney. Please be advised that my answering of this question does not constitute an attorney-client relationship.

Cordell & Cordell has men’s divorce lawyers located in 18 states.

 

Jennifer Hankinson is a Staff Attorney in the Dallas, Texas office of Cordell & Cordell, where she practices domestic relations exclusively. Ms. Hankinson is licensed in the state of Texas. Ms. Hankinson received her bachelors’ degrees in both Finance and Political Science from Santa Clara University in Santa Clara, California. She later received her Juris Doctor from Gonzaga University School of Law in Spokane, Washington, where she graduated Cum Laude.