Posted on January 16, 2022

Can Phone Records Be Used To Prove Adultery In An Illinois Divorce?

We are all walking around with little computers (smart phones) in our pockets that record everything the computer experiences. Most notably, smart phones record phone calls and texts. This information literally tells us who we are talking to and when.

An 11 AM call for 2 minutes once a week tells you a lot about a person’s relationship or lack thereof with the person on the other line.

Dozens of calls per week that sometimes last an hour and are often made in the middle of the night indicates that there is some kind of relationship between the owners of the two phones.

Text messages, go one step further and literally tell you what the parties said to each other.

Can this information from a divorcing person’s phone be used to prove adultery in an Illinois divorce court?

How To Get Information Off Of Your Spouse’s Phone?

You can just ask your spouse for their call history. They are not likely to agree to hand over their phone…especially if your suspicion of adultery is warranted.

But, if you do get your spouse’s phone you can download their call and text history.

The phone companies know how much private information is on a phone…and they don’t want to make it easy for 3rd parties to get access to that private information. An Iphone, for example, will only show you the last 100 calls.

Because of this, it is necessary to download a third-party app that will actually enable the download of call and text history.

So, you have to convince your spouse to open their phone, download an app, and then download their calls and text messages and send that information to you.

If you are going through a divorce…this is never going to happen.

Even under oath in a deposition, a party or their attorney can simply object and refuse to release those documents because the text messages weren’t included in the rider of the subpoena deuces tecum. If the text messages were included in the rider…expect the incriminating messages to be deleted by the date of the deposition.

The only way to accurately get all the information regarding calls and text messages is via a subpoena to the cellular carrier.

How To Subpoena Your Spouse’s Call Records And Text Messages In Illinois

Lawyers have the power to issue subpoenas which require the receiver to either produce the requested information or object to said production.

“[S]ubpoenas may be issued by an attorney admitted to practice in the State of Illinois who is currently counsel of record in the pending action. The subpoena may command the person to whom it is directed to produce documents or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted under these rules” Ill. Sup. Ct. R. 204(a)(1)

The only party who might have information regarding phone calls and text messages would be the cell phone’s cellular carrier: AT & T, T-Mobile, Verizon, etc.

The contents of call are obviously not recorded so they cannot be subpoenaed. Text message contents are recorded but the contents are deleted from the carrier’s servers within days.

The only thing you can expect to receive back are the records of the calls having happened or the text messages having been made.

Even if the cell phone carrier kept the text messages, they still can not divulge them under federal law.

“[A] person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1)

The key word in that statute is “content.” Electronic communications services can provide records of call and text messages, when they were sent and who they were sent to. But, companies cannot send the content of those messages.

Furthermore, there dozens of ways in which two people can communicate surreptitiously: Facebook Messenger, WhatsApp, Snapchat, Instagram Direct, Twitter Direct Messages, WeChat, Skype, Zoom. The list is endless. Are you going to subpoena every messaging app in the world?

Perhaps the most ingenious way of communicating quietly was when General Petraeus opened a gmail account with his mistress. They just both logged in and wrote draft emails on the same account. Then they read eachother’s drafts. No message was ever sent so no message could ever be intercepted. They learned this trick from the Taliban.

My point is, cheaters can and will do anything to cover their tracks. They are cheaters! Technology and the law combined, largely allow them to conceal their activities. This begs the question…why bother trying to get evidence of adultery?

Evidence of Adultery In An Illinois Divorce

Illinois divorce courts do not need to know if there was adultery in the marriage. There is only one thing that needs to be proven in order to get a divorce in Illinois: that “[i]rreconcilable differences have caused the irretrievable breakdown of the marriage and the court determines that efforts at reconciliation have failed or that future attempts at reconciliation would be impracticable and not in the best interests of the family.” 750 ILCS 5/401(a)

An Illinois divorce court is not going to care why or how those “irreconcilable differences” arose. In 99% of cases, Illinois courts do NOT care about any bad behavior including cheating and adultery.

Illinois divorce judges “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 5/503(d)(emphasis mine)

“[T]he court may grant a maintenance award for either spouse in amounts and for periods of time as the court deems just, without regard to marital misconduct, and the maintenance may be paid from the income or property of the other spouse.” 750 ILCS 5/504(a)(emphasis mine)

Illinois child support is a pure calculation “based upon the parents’ combined net income estimated to have been allocated for the support of the child if the parents and child were living in an intact household.” 750 ILCS 5/501(a)(1)(D)

Adultery between two adults will not affect either adult’s relationship with their child after an Illinois court hearing.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

Any mention of adultery in an Illinois divorce court will be met with an “Objection. Relevance!” from the opposing counsel.

“To be relevant, evidence must establish a fact of consequence to the determination of the pending action; it must be both material and have probative value.” Demos v. Ferris-Shell Oil Co., 740 NE 2d 9 – Ill: Appellate Court, 1st Dist., 4th Div. 2000

Adultery is completely inconsequential in an Illinois divorce, therefore, any evidence thereof is irrelevant and will not be considered by an Illinois court.

There is only one exception to adultery’s irrelevance: if the adultery caused a dissipation of marital assets.

“Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” In re Marriage of Tietz, 605 NE 2d 670 – Ill: Appellate Court, 4th Dist. 1992

Spending marital money on boyfriend or girlfriend is de facto use of “marital money…for a purpose unrelated to the marriage.”

That spending must be identified to be at issue.

“[T]he notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred” 750 ILCS 5/503(d)(2) (emphasis mine)

How are records phone calls or text messages going to identify dissipated property? Without the content…which you can’t get pursuant to federal law, electronic communication cannot properly identify improper spending.

Leave phone records and text messages alone! They don’t tell you anything! What you need to do is subpoena bank records and the various payments apps. Anything involving money is 100% subject to subpoenas and is completely relevant.

You’ve been cheated on. You are hurt. You want closure. What you need is a divorce lawyer who can get you disclosure with dignity. Contact my Chicago, Illinois family law firm to learn more about what your divorce needs…and what it doesn’t.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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