Can Emails and Text Messages Be Submitted in a Divorce or Custody Case?

Today our lives are lived out via our mobile devices – email, texting, Facebook, Instagram. But before you send a text to your ex or soon-to-be ex-spouse, or make an inflammatory Facebook post, stop to think how it will sound if it is read in court during your divorce or child custody case.

“Electronic communication can absolutely be used as evidence in court,” says family attorney John Griffith. “If you are going through a divorce, you should expect that any message you have sent or anything you have posted will be scrutinized, and possibly used against you. So before you grab your phone to shoot off an angry text or a ranting Facebook post, think carefully.”

Text Messages and Emails Can Be Used in Court

The American Academy of Matrimonial Lawyers has reported a large increase in evidence taken directly from smartphones, with 92% of the organization’s attorneys saying they’ve seen an increase in this type of evidence in the last three years. And 94% of their attorneys have noticed an increase in text messages used as evidence, while 81% have seen an increase in evidence taken from social networking sites, such as Facebook.

So what does that mean for you?

First, assume that you’ll have to defend any electronic information in court, including texts and emails. The use of this type of evidence is increasing, perhaps because our use of this type of communication is increasing, so you need to be sure you can stand by and defend any communication you make via text, email or through social networking sites.

Use electronic communications sparingly, especially if you are going through a more contentious divorce. Think carefully before sending anything, either to your ex-spouse or posted online. As soon as you post an inflammatory remark or send a mean-spirited tweet, it will be permanently backed up. And that means your spouse and his or her attorney will be able to access it.

“Every text message you send and every post you make online is fair game for your spouse’s attorney to use against you,” says Griffith. “Never send messages or post in moments of anger. You may use language and sentiments that you never would otherwise, and that can be taken out of context. They can then be used to paint an unflattering image of you. Always presume that any electronic communication you make will be entered as evidence, so post online and send messages accordingly.”

It is very easy to misinterpret electronic communications, even when you have the best of intentions. Before hitting send, be sure you’ve carefully read your message to be sure it accurately expresses your sentiments and intent but does not use language or phrases that could be misinterpreted in court.

Social Media & Divorce

Griffith also warns his clients never to assume that their ex-spouse won’t see a post or comment made through social media circles. You may not be “friends” in the social media world with your spouse, but you never know who might be showing your posts to your ex.

“Because the way we communicate is changing, there are almost limitless ways electronic communications can be used as evidence,” says Griffith, who regularly represents clients in California divorce proceedings. “They can be used to try to show a person’s state of mind. They can also be used to show where you were at a particular day and time, and could be used to contradict statements made in court or in pre-trial disclosures.”

It is important to keep in mind that when divorce proceedings begin, any expectation of privacy you feel you are entitled to may go out the window. Some courts have concluded that there is no reasonable expectation of privacy on social networking sites, and have even gone as far as allowing spouses access to their ex’s social media accounts. That would give your ex and his or her attorney access to any private or deleted information.

Invasion of Privacy During Divorce

There are a few limitations on the use of electronic communications in court, however. Any piece of evidence must be authenticated, so it must be proven that any post, text message or email was sent directly from you and not by someone using your account. Anything acquired unlawfully will likewise not be submitted. That means your spouse cannot hack your accounts or devices in order to secretly gather information.

To be sure your communications cannot be used against you, be careful and deliberate when sending text messages or emails to your spouse, and pay close attention to everything you post online. You may think a photo of your latest purchase is harmless, but your spouse’s attorney may use it against you to show you are wasting marital assets.

Assume everything you send or post is being gathered to submit as evidence. And keep documentation of what your spouse is doing and saying online. Your spouse may be telling one narrative, but you can fill in the remainder with texts and emails sent to you, and social media posts and photos made by your spouse.

When it comes to divorce and custody proceedings, you want to ensure that you are represented by a skilled and knowledgeable attorney who will know how and when to use electronic communications in the courtroom. The attorneys at Griffith, Young & Lass offer competent and compassionate representation and stay up-to-date on the latest trends in family and divorce law. Call the office at 858-371-5569 if you need to speak with a divorce attorney.

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