Question: My husband and I are divorcing, and I have the feeling he has been seeing another woman. He is an upstanding member of the community, but he drank very heavily while we were living together, and I am afraid for our children (ages 6 and 3) to be alone with him if he is drinking. Still, he has been awarded overnight visits with them.

Before he left, I tried to find evidence of alcohol and adultery, but could not. I can’t afford to hire a detective. My lawyer has been hesitant to bring up anything that can’t be proved “beyond a reasonable doubt.” Is there any way to get information without a detective?

Answer: While “beyond a reasonable doubt” -- the burden of proof in criminal cases -- does not apply to matrimonial matters, we agree that before you make allegations, you must have a good faith basis to support the allegations. “Instincts” and “feelings” aren’t enough. But proving a relationship between two individuals may not be that difficult, even without an investigator.

If your husband has a cellular telephone and you know his number or service provider, your lawyer can require him to produce his records or, if he says he does not have them, can issue a production subpoena for his billing and activity records directly from his service provider. Similarly, if the person you suspect of seeing your husband has a cellular telephone, those records are also available by subpoena once you see from your husband’s records that there has been contact.

If, however, there are business or other cellular telephones with different numbers, proof of communication may be more difficult. And, if your husband is using prepaid telephone cards, chances of getting information are slim unless you find the card itself. If you find the actual card, which has a numeric code, usage records may be available by subpoena.

Lastly, depending on where you live and your type of local telephone service, local calls from your home telephone may be available for a limited period of time. Check with your local telecommunications provider to determine the type of service and whether records of local calls are maintained. If so, they are also available by subpoena and could show both incoming and outgoing local calls.


The drinking issue might also be solvable by subpoena. Many customers register at grocery stores and receive bar coded cards to secure discounts. This gives the grocery chain patterns of purchases that are used in inventory and marketing efforts. Since almost all grocery stores sell beer and wine, and some sell liquor, if your husband uses a discount card, his purchases may be available from the grocery chain by subpoena. By getting and reviewing these purchasing records, you will be able to determine what he has purchased and is purchasing, and when. And if he is buying prepaid telephone cards at the grocery store, you’ll know it.

SoloFact: Proof of adultery can be shown by the opportunity to be intimate – that is, by being alone with the individual - and the inclination to be intimate - that is, evidence of the couple walking hand in hand or letters that have passed between them. Evidence can be direct or circumstantial, but it must be clear and convincing. A pattern of regular communications by telephone as shown by records may lead to evidence of infidelity. Your lawyer can explain the applicable rules in your state.