Highland Lakes, NJ asked in Arbitration / Mediation Law, Divorce and Family Law for New Jersey

Q: can I file a subpoena for phone records before filing divorce?

I live in NJ and have every reason to believe my spouse is cheating. Proof would be in his phone records. However, I'm looking to subpoena these records and have definite proof before deciding to file for a divorce.

1 Lawyer Answer
Bari Weinberger
Bari Weinberger
  • Arbitration & Mediation Lawyer
  • Parsippany, NJ
  • Licensed in New Jersey

A: Hello and thanks for your question. I'm sorry you are going through this tough time. Divorce is incredibly difficult, especially when there is adultery involved. I'll try to answer you as best I can, here in this general forum.

With regard to subpoenas, it is possible to issue a subpoena on a cell phone company, but it is not an easy task. Companies such as these have teams of attorneys that handle legal requests such as these and it can take a lot of time and become a large hassle, especially if your subpoena is incorrect, missing information or otherwise faulty. It is not easy even for attorneys to wrangle with cell phone companies, especially in non-criminal cases.

On another note, I would suggest that you reconsider filing for divorce based upon adultery. Of course, adultery is certainly a grounds for divorce here in New Jersey, but it may not be the best for you and it certainly is not an easy grounds for divorce to pursue, financially and emotionally. Firstly, if you do file based upon adultery, you have to name the person with whom your husband is having the affair in your divorce paperwork. They have the right to retain their own attorney to represent them and you or your attorney will have to spend time addressing this if that happens. Also, filing based upon adultery can be emotionally exhausting. You have to prove the adultery happened, in open court, potentially in front of an audience of onlookers, if your case goes to trial.

In the long run, remember that NJ is a no-fault state, meaning that the courts do not "punish" spouses for bad behavior such as cheating by awarding the other spouse more money or a larger percentage of assets. So, calculate what you will really get in the end. Don't waste court fees, legal fees, stress and anxiety simply because you're angry now. If I were you, I would consider filing based on irreconcilable differences where you simply tell the court that the marriage has broken down and cannot be fixed. This is a quicker, less stressful and less expensive alternative.

Consider at least a consultation with a family law attorney in your area. Many offer free consults as we do. Wishing you the best of luck. Bari

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