If you are going through a heated divorce, it is important to consider what types of evidence your spouse may be able to use against you. They could turn to your digital communications to support claims of insufficient parenting, hidden assets, infidelity, or other negative behaviors.
Can text messages be used in divorce court? They can, but they need to be authenticated and relevant to your case to be admissible in court. Your divorce lawyer can help you better understand this process.
When Might Text Messages Be Used as Evidence in a Divorce Case?
Text messages may serve as helpful evidence in divorce cases. You may be able to use text messages against your spouse or in your favor, but your spouse could also use your digital communications against you.
Historically, text messages have been used in divorce court to support or refute:
- Parental fitness: Text messages may be used to show that a parent is unwilling to cooperate with shared custody arrangements, prove who had physical possession of the child at a specific moment, or document custody routines, all of which can impact custody decisions.
- Infidelity: One spouse may submit a subpoena for the other spouse’s text messages to prove their alleged infidelity during the marriage.
- Financial misconduct: Text messages may be used to show past conversations regarding hidden assets or undocumented income that one spouse has failed to disclose in the divorce case.
- The validity of past conversations: If one spouse has denied saying or doing something, text messages may be used as evidence to support or refute these allegations.
- Informal agreement discussions: If the couple has discussed spousal or child support via text, these messages may help demonstrate the spouses’ willingness to agree to this arrangement.
California is a no-fault divorce state, which means proving infidelity or other forms of marital misconduct may not generally be relevant. That said, there are certain cases in which evidence of adultery could impact custody and spousal support determinations, which is where text messages may be helpful.
Your attorney can help you understand how text messages may be used in your case, along with the types of messages to avoid sending to your spouse.
The Evidence Authentication Process for Text Messages
Screenshots of text messages alone are not enough to legally submit this evidence to court. Instead, your text message evidence needs to be authenticated, or proven to be genuine, to be deemed admissible in court.
Under the California Evidence Code, you may authenticate text messages by showing any of the following:
- The other person admitted to sending the message.
- A witness saw the other party send the message.
- The message contains specific, identifiable information only the other party would know.
Your attorney can help you understand the likelihood of your text messages being admissible in court and gather other evidence to support your case.
Other Rules for Using Text Messages as Evidence in Divorce Court
Aside from needing to authenticate text messages for court admissibility, you must ensure that they meet other criteria:
- They must be relevant: Any text messages you want to submit as evidence must be relevant to your case. So, in some cases, text messages about infidelity may not be relevant unless they support custody or spousal support determinations.
- They must not be from a third party unless relevant: Generally, the court may require that any text messages submitted as evidence be between the divorcing spouses. There are some exceptions to this rule, but digital communications from third parties may be considered “hearsay” unless the third party agrees to testify under oath to the message’s authenticity.
These additional requirements may make it even more challenging to use text messages in your case.
Obtaining Text Messages From Your Spouse To Support Your California Divorce Case
If you believe that your spouse has text messages that may support your case against them, your attorney can discuss methods of obtaining those communications. They may begin by issuing a formal discovery request directly to your spouse, compelling them to produce screenshots or exports of their text message history.
Alternatively, they may be able to subpoena your spouse’s cell phone provider to request metadata for conversations, including dates, timestamps, and phone numbers, but not the written content of the messages. A third-party subpoena may be appropriate if your spouse was texting another party and you want to use those messages in your case.
Protecting Your Case Through Mindful Digital Communications
While authentication is necessary to use text messages in divorce court, you should not assume that your spouse will be unable to meet these terms. There is always the possibility that what you say in digital communications could hurt your case. Being mindful of your text messages is important, especially if you are in the middle of a contested divorce process.
These tips can help you protect your case through your digital communications:
- Use clear, concise language when communicating with your spouse via text, and avoid any language that could be misinterpreted against you.
- If you want electronic records of certain messages, consider sending them via text and email to increase the likelihood of their authentication.
- Keep text communications with your spouse to a minimum. Have your attorney speak to their attorney about matters regarding the case instead of talking to them directly.
- Avoid saying anything via text that you would not want a judge or jury to read.
Consult an Experienced Divorce Attorney in San Mateo
Can text messages be used in divorce court? In many cases, they can.
The digital age has added a new layer of concern surrounding evidence in divorce cases. At Viola Law Firm P.C., we help clients understand how text messages and social media can affect divorce proceedings so that they can protect their cases.
We provide personalized representation throughout the divorce process and other family law disputes. Contact us today at 650-643-4212 to request a consultation and start your divorce from a position of strength.
