Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin? – Update 2015

woman hand holding the phone with sms chat on screenAs an update to our 2012 blog titled “Can I Obtain Cell Phone Records or Text Messages in a Divorce in Wisconsin?” we reached out to three major cell phone providers to find out the current policy on obtaining text messages and cell phone records.

For cell phone records and text message logs (i.e. name, number, and time the call or text was sent/received), the process to obtain them from the phone carrier is relatively easy, which is similar to what we found in 2012 (please see above link). However, just as in 2012, obtaining the actual text message content remains more complicated.

Two of the three providers indicate that they do not maintain any text message content in their records. The two providers that do not save any of the content indicate that there are other ways for clients to save their text message content on their own. For example, clients can synchronize e-mail accounts to their cell phone number and set up an archive of text messages. Or, they can save their text messages on the cloud if they sign up for a certain type of messaging.  But, if you are trying to obtain the text messages of the other party through these providers, you will not be able to do so.

However, through at least one of the major providers, this information can be obtained through your personal online account at the click of a button. For this provider, that content is available for 3-5 days typically and up to 10 days at maximum. There is an automatic purge of the messages after 10 days. In addition, this company does accept preservation letters (to allow you to preserve past texts of yourself or the other party), but it comes at the cost of $50 for every 5-day increment requested. Further, you cannot request “future” preservation of text messages. That is considered surveillance, if not done through the appropriate legal channels. If you wish to have a more expansive release of text content, a judge would have to sign a subpoena and the company would have to receive consent (in writing) from the user of the phone. Both of these documents have to be received in order to do a continuing preservation of texts. There is no specific form that you must send to request preservation of texts, but it must include the telephone number, dates and specific records being requested, and a return address for the information.

Overall, the message remains the same: if you wish to save the content of text messages you need to be proactive and take action to save them yourself (i.e. take a screen shot and e-mail it to yourself). You should operate under the notion of “once they are gone, they are gone,” unless you have the rare case where you have the proper permissions to obtain them. To find out exactly what your carrier offers in regard to preserving text message content you would have to contact your carrier’s legal department.

Also, as we previously stated in 2012, text messages in Wisconsin would have very little value or relevance in a divorce as Wisconsin is a no fault state. This may be different in other states, however.

If you find yourself in a family law dispute where this issue may be relevant, please contact our office at 414-258-1644 to scheduled your free initial office consultation or visit our website for more information.