Can Text Messages Be Used in Divorce Court?

It has become easier to communicate with loved ones instantly through technology. No matter the location, we can easily send emails, texts, or direct messages from social media accounts.

However, these electronic messages also can show the negative side of a relationship. Couples can get into heated arguments, send threatening messages, converse with secret lovers, and discuss criminal wrongdoings. When a relationship ends, these electronic messages continue to appear in divorce hearings as incriminating evidence against the other person to win child custody battles or obtain certain marital assets.

Use of Electronic Messages Admissible in Divorce Hearings

Since 2012, 90% of divorce attorneys have reported the use of digital messages in court hearings. Some people argue that such messages are private and confidential. However, anything placed in writing can be used as evidence, as ex-spouses continue to bring printed text messages, emails and direct messages to court.

When it comes to admissibility of these electronic messages, the important factor to consider is how the messages were obtained. If the message was sent directly to the spouse’s phone from the other spouse, then a judge may allow the evidence to be used during the hearing. Messages may also be allowed in court if it is a personal computer that is used by both spouses.

When Electronic Messages Are Not Allowed in Hearings

There are certain federal and state privacy rights in place that can prevent certain messages from being used during a court proceeding. Most laws prohibit the unlawful interception of communication over electronic devices.

In other words, if a person believes their ex-spouse was committing adultery through email, and attempts to get those incriminating emails without proper authorization to the private computer or smartphone, the messages would not be permissible in the divorce hearing because they were not gained legally. Only an attorney may gain access to the private text messages and emails through a subpoena, as the ex-spouse’s attorney can take legal steps in the court to deny this request.

Introducing Authenticated Electronic Evidence in Court

Any electronic messages used as evidence in a divorce court has to be authenticated. So, a person will have to prove that it was their ex-spouse who sent the messages. The easiest way to receive authentication is to have the ex-spouse admit to creating and sending the messages. The court may also allow a third-party eyewitness account where a mutual friend may claim to have witnessed the ex-spouse craft the electronic message.

Some family courts are lax regarding authentication of text messages and emails. They may accept printed materials that would otherwise be known as hearsay by accepting circumstantial evidence, such as the message being written that contains information that only the ex-spouse would be aware of. Yet authentication is important as it helps to verify that a third-party individual did not use a person’s computer or smartphone to send electronic messages to their spouse without anyone knowing.

Ex-spouses should also know that having authenticated, admissible electronic messages and texts does not guarantee that the court will rule in their favor. Many divorce cases are no-fault divorces, where neither party needs to prove that the other person was at fault for the marital discord in the relationship. In these cases, people are only required to show to the divorce judge that the marriage has ended due to irreconcilable differences.

Getting Legal Help with Your Divorce Hearings

Divorce hearings can be stressful and time-consuming, especially if there are child custody hearings involved hiding assets or any large marital assets to split between the ex-spouses. It is always advisable to seek legal help from an experienced attorney who handles family law matters. At Infinity Law Group, we are divorce and family law attorneys helping people throughout the Boston area with their legal problems. Reach out to our office today to get a free consultation regarding your family law issue.