Can Text Messages Be Used in a Divorce?

Can Text Messages Be Used in a Divorce?

• January 28
• Evans & Herlihy
• Family Law

As divorce attorneys, we hear the question, “can text messages be used in a divorce?” quite frequently. Asking it makes a lot of sense. Think for a moment. You likely spend a significant amount of time on your cell phone.

Today, more than ever before, many of us use texting as our primary form of communication with our friends, our families and, quite often, our significant others.

In fact, newly dating couples tend to use text messages to get to know each other and even plan their dates. These texts are often fun and flirty. Cell phones offer an effective and efficient way to communicate.

Unfortunately, as you are probably aware, conversations over text are not always happy and positive. In fact, many of us are more likely to speak our truths via text message, especially when they may be unpleasant in nature. This is frequently seen when couples are considering divorce.

Communicating via Text Messages During a Divorce

If you and your significant other are struggling, it may seem like communicating via text is the best choice. After all, it’s quick and easy. And, sometimes it may be a good idea. Clearly, it is convenient to share general information (like when to pick up the kids, or the name of a dentist) over text. In cases like this, text messages are useful and time-saving.

That said, conversations that are more personal in nature (and perhaps more heated) are best conducted verbally. Not surprisingly, arguments over text deteriorate quickly, and you may find yourself typing things you never would have spoken and certainly wouldn’t want anyone else to see. But, because it’s so easy, people tend to simply go too far in a text message. And, sometimes these messages can be incriminating, especially if you are ending your relationship. With this in mind, it is important to understand what can be used against you in a divorce.

How Can My Text Messages Be Used Against Me in a Divorce?

In Texas, text messages can be used in a divorce. In fact, there are a variety of situations in which this can happen.

Texting with Your Spouse

Typically, there will always be some level of “text” communication between you and your spouse. Understand, though, that your spouse can save messages from you and submit them as evidence during divorce proceedings. Because these messages were directed toward him or her, they are well within their rights to use them.

It is wise to think twice before you hit “send” when communicating with your spouse.

Texting Friends and Family

Text messages you send to other people (friends and relatives) can also be used against you. Technology makes it simple to “screenshot” messages which can be shared with your soon-to-be ex-spouse and used in court. Be mindful of how you communicate with those you know and what you say. Your words can be used against you.

Texting Regarding an Affair

If you are involved in an extramarital affair, text messages to your romantic partner can be subpoenaed. If it is your spouse having the affair, you may be able to legally obtain information regarding the texts to be used in your divorce.

Many people believe that deleting messages means they will no longer be accessible. Unfortunately, that is not the case. Because of the ability to screenshot, print and save text messages, once you have sent them you no longer have control over their life. As a result, you should be incredibly careful about what you text and to whom you send messages.

Rules Surrounding Text Messages

Clearly, text messages have played an important role in divorce proceedings for years. That said, not everything electronic is fair game. For example, the Electronic Communications Privacy Act of 1986 (ECPA) governs what is and is not admissible in court with regard to electronic communications. Basically, emails or text that were sent directly to you are absolutely admissible.

However, if you have gained information illegally — let’s say, going through your spouse’s email or phone — information you obtain may not be used. You must have a right to the communication to be able to submit it.

Clearly, there are considerable “gray areas” when it comes to what you will be able to use and what text messages can be used against you. It is wise to work closely with our divorce attorney in this regard. He will be able to provide guidance on electronic communications. Consider erring on the side of caution, and don’t email or text anything you would not want to be made public.

Can Social Media Posts Be Used in a Divorce?

In many ways it seems as if social media is at the heart of much of our communication these days. We post daily updates on Facebook, share photos of our families on Instagram and virtually announce our feelings on the broadest range of topics on Twitter. We even re-tweet others’ opinions.

Social Media is Popular

Social media platforms are clearly ideal for sharing information. That said, they have also become a popular means of communication. Think about it. You not only post on your own page, you also comment on information shared by your friends and family. Often, posts seem to become conversations.

With so much information being shared, it’s not surprising that information from social media often finds its way into divorce proceedings. Quite simply, the answer to the question “can social media posts be used in a divorce” is “yes.”

That said, information regarding your posts must also be obtained legally. So, public posts that you have made are admissible. Additionally, it is important to understand that information beyond that which is found on your page can also be used, like comments on others’ pages. Clearly, you should be careful with how you respond on all of your social media.

Privacy is Key

Social media, while entertaining, can also prove to be your downfall when it comes to divorce proceedings. Because of this, divorce attorneys often advise their clients to make their pages private or, in some cases, even close their accounts. Private pages are not accessible by those who are not designated friends. Not everyone can view your posts. However, it does not prevent those who are friends from taking screenshots and sharing your information. Be aware, you may not know the relationships your social media friends have with your spouse.

Thus, the most conservative way to handle social media may be to deactivate your account. Doing this removes it from visibility on the platform. It is not the same as deleting specific posts, an action which should be avoided. Erasing previously posted comments from your wall does not mean they were never shared. Deleting posts may even be viewed as destroying evidence.

Our Advice: Proceed with Caution

With the prevalence of electronic communication, be it texts, emails or social media posts, use caution as your guide.

Think very carefully before you text, post or email; what you put in writing is, for all intents and purposes, permanent.

While there are cases where privacy laws may prevent your texts from being used against you in a divorce, it is likely not worthwhile to take the chance that your messages can be damaging.

While divorce lawyers in Texas and across the country may manage their cases differently, most agree that exercising caution with regard to texting and all electronic communication is wise. Information in electronic communications that are deemed admissible can affect custody as well as the distribution of your assets.

At Evans and Herlihy, we are well-versed in the intricacies of divorce proceedings in Texas. Our professionals understand the importance of managing both the legal and the emotional sides of these cases. Contact us today at (512) 732-2727 to speak with one of our experienced attorneys for a free consultation and learn more about how your text messages can be used against you.