In family courts across the country, incriminating text messages and other personal electronic communications are increasingly being used as evidence in divorce proceedings — and it’s easy to understand why.
In today’s high-tech world, texting has overtaken many traditional methods of communication. This can be detrimental, as it is easy to take messages out of context and apply many different interpretations that were not intended. It has also become a staple for people engaging in extramarital affairs, and a lot of them are being careless about what they send.
A survey released in 2012 indicated that over 90 percent of divorce attorneys had seen increased use of smart phones’ digital messages being submitted as evidence, and the trend isn’t slowing down anytime soon.
Many assume their personal text and phone messages are secret and confidential; however, once a text message is sent, there is no taking it back.
‘Digital lipstick on your collar’
This issue has made quite a bit of news in recent years. In one very famous divorce case, Tiger Woods’ “private” text messages to his paramours were somehow broadcast around the world. Similar mistakes ruined or damaged the careers of several members of Congress, the governor of Nevada and the mayor of Detroit.
Those transgressions are a lesson that should have been learned by everyone at this point.
Texting to your lover is what the New York Times has called “digital lipstick on your collar,” and you can be caught very easily. The story may be a few years old, but it is just as relevant today.
Even if your divorce doesn’t involve a cheating spouse, cell phone messages can still land you in trouble, particularly if you text a message that could be interpreted as threatening or irresponsible.
For example, if you are fighting for custody of your children and you send your soon-to-be ex an heated text about one of the contentious issues, the message could be used as evidence in court to portray you as having anger issues.
When you are trying to prove that it is in your children’s best interests to spend more time with you, don’t give you ex any more ammunition to deny that time. While on its own that message may not be a very strong piece of evidence, the text could be used in conjunction with other exhibits to prove a point against you.
Text messages can be interpreted in a completely different way than you originally intended, so it is best to be very sure that you do not send anything inflammatory.
The admissibility of text messages
Some legal experts say using personal texting as evidence is an invasion of privacy and therefore should not be admissible in court. However, if your wife’s cell phone is part of a family account, you have the legal right to review her messages.
On the other hand, it may be a crime to attempt to extract text messages from a phone that doesn’t belong to you. As in criminal cases, admissibility of evidence is often based on how the evidence was obtained.
Another challenge to the admissibility of a text is proving who wrote and sent it. Even though your wife’s iPhone may contain a steamy message to a strange boyfriend, there’s always a reasonable doubt that she was the actual author.
In a divorce case, the admissibility of incriminating messages may or may not matter.
If your wife has been unfaithful and you confront her with undeniable digital evidence you find on her phone, it may be essentially irrelevant since most divorces are filed on no-fault grounds — even blatant cases of adultery often have very little impact on the outcome of the case unless it can be proven that marital assets were squandered on the affair.
However, it could strengthen your argument when it comes to negotiating outside the courtroom, and her own guilt could could help you receive a more favorable settlement.
There is still a lot of legal work to be addressed and decided about these issues, but if you’re facing a divorce, make sure to work with an experienced family law attorney who understands your position and will fight to protect you. A good lawyer can help you determine whether the text-message evidence you feel is damning will truly influence the court or be summarily dismissed as irrelevant.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”