Here’s the typical scenario: You know she’s living with another man. She knows she’s living with another man, and that in doing so, her alimony is at risk for reduction or termination. But she also knows that it’s your burden to prove that she’s cohabitating, and she knows that it’s difficult and expensive to prove. She denies, denies, denies. She has the upper hand, and she knows it. Unless you have at least $20,000 to pay an investigator to conduct continuous and ongoing surveillance of the residence and the parties’ comings and goings for two months or more, you are facing an uphill battle.
So, what are your options? How do you prove this critical element of cohabitation? While the law in many states provides for termination or reduction of alimony when the recipient ex-spouse is cohabitating with a member of the opposite sex “in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship,” the unfortunate reality is that what demonstrates “cohabitation” is ill-defined.
Clearly, one of the obvious criteria for proving cohabitation is simply that the parties are living together. But, how can you establish a person’s whereabouts, with any degree of reasonable certainty, when they are deceptive and secretive? When they tell the children “don’t tell your father…. or I’ll lose my alimony and we’ll lose our house and we’ll have to move”? The answer lies in the palm of the hand of the opposing party or her lover: the cell phone. The cell phone is tracked 24 hours/day, 7 days/week. If the power is “on,” then cell towers are constantly pinging the device, providing thousands upon thousands of lines of data. These are commonly known as “geo-location records,” and are easily obtained. This single report provides incontrovertible evidence placing your ex or her new man in a particular place. Geo-location records can provide the “gotcha” information needed to establish where a person is located throughout the day.
And guess what? These records are FREE! There is no charge for requesting or receiving these often-voluminous records. [Note however, there may be a nominal cost for travel expenses if you need a Records Custodian or Engineer to testify at the time of trial.]
Today, many mobile phone carriers employ a specialized team of personnel, who are trained to respond to subpoena and court ordered requests for cell phone records. These agents are dedicated to complying with civil (and criminal) requests by federal, state and local law enforcement agencies, attorneys, and litigants, who require this information to assist with the prosecution of their case. Often in family law cases, the ability to prove or disprove the whereabouts of a person becomes the centerpiece of the case. This information is often the most persuasive piece of evidence offered at trial.
Under most federal and state discovery rules, you are permitted to subpoena the cell phone records of a third party, who may not necessarily be a party to the pending lawsuit. For example, former husband may subpoena the cell phone records of former wife’s new boyfriend, for the purpose of establishing that the new boyfriend is residing with former wife.
It has been the experience of this author/attorney, that many family lawyers are unfamiliar with the concept of geolocation records, and as such, may be dismissive of your suggestion to request the phone records during the discovery process. Be prepared to hear your attorney tell you that you can’t obtain these records because you’re not permitted to get them “under the law.” This is simply inaccurate. In fact, many courts, who are the finders of fact seeking the truth, are persuaded by the content of these records. Your attorney may also try to dismiss you by stating that opposing counsel will object to these records. Of course they will! You should expect a battle over records that will expose cohabitation. The ancient proverb, “Ignorance breeds contempt” is a prime example of how lack of ability to appreciate the importance of information prevents someone from seeking that information. In this event, you MUST be forcefully persuasive and insist that your attorney seek to obtain these records early-on in the litigation for three important reasons: first, because of the significant back-log in the cell carrier offices, the records can take up to three months to obtain; second, once the records are received, they must be reviewed by someone who is able to analyze the data and prepare a courtroom exhibit that will demonstrate the findings to the court; and three, if these records demonstrate a living arrangement contrary to your spouse’s position, you may be able to use this information to leverage a settlement before you both run up excessive legal fees.
If you believe that your case would benefit from these records, but your attorney is reluctant to follow your instructions, our services include working cooperatively with your attorneys’ office to obtain, review, analyze and prepare the necessary exhibits for use at trial. Because of the complexity of the information contained within the report received by the cell carrier, it will likely be necessary to engage someone, who is familiar with and adept at analyzing the data contained within the report, and who can assist in the preparation of exhibits for use at trial.