Bilboes, Brands, and Branks may sound like a competing Virginia law firm, but it’s really a list of three punishments once meted out in Colonial Williamsburg1. Bilboes (long iron bars affixed with shackles), brands (heated irons for human flesh), and branks (“scold’s bridles,” head-sized metal cages with iron tongues) were brutal punishments. They are directly related to a subpoena, since the Latin word “subpoena” means “under penalty.” Under penalty, as in, “do this or suffer under penalty of law.” Like turning over your phone records in civil proceedings like your divorce trial.
You may be unpleasantly surprised to discover that your cell phone’s records can be subpoenaed in civil actions. Family law in Virginia is nearly always a civil procedure. All steps in the process adhere to rules handed down by the Supreme Court of Virginia.
For your cell phone records to become part of a civil matter, opposing counsel either issues the subpoena directly or applies to the court clerk for the issuance of a subpoena. This is usually (brace yourself!) a subpoena duces tecum, or a “subpoena for production of evidence.”
A subpoena issued either by an attorney who is an active member of the Virginia State Bar or by a court clerk is legally binding on you, companies with whom you have dealt, and your attorney.
However, rules of civil procedure require the opposing counsel to notify you in advance that the records are needed. Your family law attorney can file a motion to quash (meaning, to reject or cancel) the subpoena before it is served.
Once served, however, the subpoena is a legal order. That’s where the “under penalty” part comes into play:
- The subpoena must be issued in good faith, for legitimate reasons, by the one side
- The subpoena must be honored by the other side
Subpoenas are often dismissed by news media and politicians as “fishing expeditions,” but most attorneys avoid using them so broadly, since the attorney pleading the subpoena can get in trouble for filing frivolous pleadings if the subpoena is used only as a cudgel.
So, yes, your cell phone records, financial documents, personal photographs, audio tape recordings, surveillance camera recordings and many other bits of evidence can be subpoenaed in a family law case.
Who Receives the Subpoena for Phone Records?
Cell phone records are not subpoenaed from the two opposing parties. The subpoena is served to the cell phone provider, so that neither party can interfere with the records.
If one party has something to hide, that party will sit and squirm knowing the text messages, telephone numbers, times of contact, and frequency of contact will all be revealed directly from BlabCom to opposing counsel.
No opportunity exists for either party to doctor documents or delete files. The records become evidence during discovery, and your attorney of record knows what your spouse’s attorney knows. This gives both sides time to prepare defenses against the evidence (phone records, surveillance photos, hotel bills, and similar seedy stuff).
No Fault? No Phone!
Perhaps the most common use of subpoenas in family law matters is gathering evidence of fault in divorce. Virginia recognizes only a handful of fault grounds, specified in the well-worn pages of Code of Virginia § 20-91:
- For adultery; or for sodomy or buggery committed outside the marriage;
- Where either of the parties subsequent to the marriage has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony subsequent to such conviction, and cohabitation has not been resumed after knowledge of such confinement (in which case no pardon granted to the party so sentenced shall restore such party to his conjugal rights);
- Where either party has been guilty of cruelty, caused reasonable apprehension of bodily hurt, or willfully deserted or abandoned the other, such divorce may be decreed to the innocent party after a period of one year from the date of such act
(Okay, they’re not really pages anymore for most folks; we access the good ol’ Code electronically, but “the well-worn electrons of Code of Virginia” sounds ridiculous. So, “pages.”)
Anyway, under those fault grounds or through a contested divorce, you and your attorney may go after your spouse with both barrels blazing. You and your family law attorney may subpoena everything in sight, down to the family dog’s dental charts, depending on how disagreeable the divorce is.
Or you two can file for a no-fault divorce, without having to subpoena anything. You don’t need evidence of wrongdoing, just a peaceable agreement to separate and divorce with a minimum of fuss. Property settlement, waiting period, divorce, done. No cell phone records needed!
At The Firm For Men, when you consult with our Virginia Beach office at (757) 383-9184, you speak with experienced Virginia family law attorneys, not middlemen. We can help you defend against subpoenas, issue subpoenas on your behalf, and protect your rights as a Virginia man.