FollowHere’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 in a supportive relationship, 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 the cohabitating element of “supportive relationship”? 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 (or, ‘supportive relationship’)” 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 Cell Tower Location data. This single report provides incontrovertible evidence placing your ex or her new man in a particular place. These records can provide the “gotcha” information needed to establish where a person is located throughout the day.
It has been the experience of this author/attorney, that many family lawyers are unfamiliar with the existence or value of these 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 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 such a battle. In this event, you should 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 third, 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. For additional information or assistance with processing your request, contact a consultant at Legal Strategy Services, LLC, and request a strategist to assist you or your attorney. For more information, call (954) 850-1429 or send an email to diane@dianedanois.com or visit www.dianedanois.com.
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