How to Get Evidence During a Custody Battle or Divorce

Missy Crystal

Consider these methods when gathering evidence during your legal battle.
How to subpoena evidence during your legal battlePhoto by RODNAE Productions from Pexels

I’ve been through multiple custody battles.

After dealing with my legal messes, I started freelancing for several lawyers. Over the last 10 years, I’ve ghostwritten hundreds of legal articles for divorce and family law attorneys. During this time, I’ve learned some surprising information about subpoenas.

Many plaintiffs and defendants are quick to subpoena the basics, like bank account statements and call logs, but you can actually request just about anything for court. You just have to show that your subpoena is relevant to the case.

Don’t be caught off guard if your ex subpoenas something unexpected. Prepare for the worst and watch how you conduct yourself via email, online, and during business events. You never know what might end up on the judge’s desk.

In no particular order, here are 7 ways your ex can get information about you during a divorce or custody battle:

1) School emails

The emails you send your child’s teachers, paras, principals, and anyone else who works for the school district aren’t private. Be careful before emailing teachers about family matters or telling the school's social worker you're struggling financially. Always discuss sensitive matters in person or via the phone.

2) Work records

Exes are notorious for lying about work-related matters during court. If you have a workaholic ex who consistently skips visits, request their work records.

Work records can reveal quite a bit during a custody battle or divorce, such as:

  • Salary, including bonuses
  • Vacation time, sick days, and personal days
  • Attendance and punctuality
  • Workplace issues, including writeups and info about DFS reports or other agency investigations
  • Employment evaluations, such as personality tests

Let’s say your ex claims she’s never missed a scheduled weekend visitation with the kids. You know that’s not true, but subpoenaing her work records can actually prove that she’s lying. You may also want to subpoena work records if your ex pretends he can’t take off work for medical appointments or parent-teacher conferences, but you know he has unlimited vacation time.

3) Educational records

We discussed school emails earlier, but those were for your kids. Your ex can also request your educational records during a legal battle. This includes transcripts, information about financial aid awards, and whether you’ve obtained a degree.

This information is often used to show your earning capacity for child support or alimony. For example, let’s say you quit your high-paying sales job and take a part-time job at McDonald’s making minimum wage. Sometimes this happens during legal battles because the other party wants to pay less for court-ordered expenses.

After reviewing your educational records, the judge may determine that your current income doesn’t reflect your earnings potential. Some lawyers even research the average income for specific degrees, plus find job listings for positions in the field. In this situation, the judge won’t be happy if you say you’re working at McDonald’s because you can’t find anything better.

4) Landlords

Eviction records are often public, and your ex can also subpoena current and former landlords. This is a good way to find out if you’ve been kicked out for doing things that could endanger your kids, such as selling drugs or hoarding.

Sometimes a subpoena isn’t necessary if you have an unprofessional landlord. When my ex moved out, the landlord made it clear how much she disliked him. She gave me plenty of information — information that I didn’t even request — because he had gotten on her bad side.

5) LinkedIn

LinkedIn is a great place to find employment information for an estranged spouse or an ex who refuses to pay child support. You can also use LinkedIn to show connections that exist between your ex and others, which may come in handy if they run with a shady crowd.

Some people don’t understand that LinkedIn is for career matters, so they treat it like Facebook or Twitter. You may hit the legal jackpot if your ex posts rants or inappropriate content on there.

Subpoenas come in handy if you need information from private messages on LinkedIn. I’ve seen a surprising number of spouses communicate with secret lovers via LinkedIn. You can also use LinkedIn messages to show that an ex is lying about their ability to find work.

6) Former significant others

Bitter exes love talking to judges, so keep that in mind if you have one. It’s also helpful to subpoena people who have children with your ex. You can show that your ex consistently loses custody or refuses to coparent.

However, subpoenas don’t just bring up potentially damaging information. If you’re on great terms with a former spouse or someone you have kids with, consider subpoenaing them so they can testify in your favor.

7) Medical records

I’ll be honest: I’m not a fan of subpoenaing medical records because I think it’s invasive. However, it's possible to request them. Many people mistakenly think medical records are off-limits during legal battles because of HIPAA, but that’s not entirely true. You can request your ex’s records, and they can request yours.

Not every doctor will cooperate, though — I tell you this as someone who used to work in the healthcare field. Remember, a provider's loyalty is to their patients, not an angry spouse or a random family court judge.

It’s also worth noting that you may have to sign a release before your ex can get your records. Sure, you can refuse, but it may anger the judge if you do. Refusing to provide your medical records makes it look like you’re hiding something.

It’s easier to get medical information from local providers than it is from the federal government. If your ex is on disability, good luck getting those records. The Social Security Administration says, “Generally, SSA will not respond to a subpoena for records unless it is signed by a federal district court judge.” The agency also notes that “SSA will not honor state court orders, as state courts do not have jurisdiction over a federal agency.”

Don’t limit yourself during a legal battle

A quick Google search can reveal quite a bit about some exes, from crazy Facebook rants to criminal records. However, that’s not always enough if you’re dealing with a high-conflict ex.

Don’t be afraid to subpoena anything that verifies the claims in your divorce documents or custody petition, but remember that your ex can also subpoena the same information. Watch what you say, especially via writing, and pretend the judge is standing beside you at all times. Behaving like this can help you survive your legal battle.

Disclaimer: This is not legal advice. This article is based on my personal experience and career background, but I am not an attorney. Laws and guidelines are different in each state and country. Please seek clarification from a legal representative before trying anything you read in this article.

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Full-time mom, student, and writer. I cover everything from parenting and personal finance to relationships and health.

O Fallon, MO

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