Text Messages Increasingly Used As Divorce Evidence (2023)

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.

(Video) Can You Use Text Messages as Evidence in a Divorce?- Brad Micklin | The Micklin Law Group, LLC

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.

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Cordell & Cordell understands the concerns men face during divorce.

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.

(Video) Two Minute Lawyer: Text Messages as Evidence

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.

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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.”

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Text Messages Increasingly Used As Divorce Evidence? ›

More specifically, in Texas divorce cases, texts became more commonly used as evidence to prove situations like infidelity, hiding what should be shared assets, abuse, and much more. However, several theories about using texts as evidence in a divorce case in Texas include: It's an invasion of privacy.

Can text messages be used in court to prove adultery? ›

According to California law, text messages can be considered as evidence in family court proceedings. These text messages can be used as proof or facts to establish allegations of adultery, financial infidelity, domestic violence, child abuse or neglect, or other threatening behavior.

Can deleted text messages be used in divorce? ›

Can a Lawyer Subpoena Text Messages That Have Been Deleted? As mentioned above, a divorce lawyer can't subpoena the actual content of a text message. However, if a spouse deletes a text from their phone, that communication record can still be subpoenaed.

Are text messages legal evidence in court? ›

The state or federal rules of evidence determine what types of evidence are admissible. In most courts around the country, text messages are admissible. With that being said, there are a couple of hurdles that a party must clear before a judge will allow a text message to be admitted as evidence.

Are text messages strong evidence? ›

Under California law, text messages are admissible as evidence in family court proceedings. When presented as evidence, a text message can help support your case or establish accusations of domestic violence, extramarital affairs, child abuse, or financial infidelity.

Can screenshots of text messages be used in divorce court? ›

Take Screen Shots: If you have physical access to the phone or tablet, you can take screenshots of the text messages and use them as evidence. Screenshots are admissible as evidence in court.

Are screenshots of text messages admissible in court? ›

Legal requirements to take screenshots for litigation. Even though it might seem unusual, screenshots are admissible evidence. Yes, you can use them as legal proof, but you can't just present them and expect everything to be okay. Time and date matter a lot in a litigation process.

Can I legally look at my wife's text messages? ›

U.S. Laws On Spouse Spying

It is also illegal to hack your spouse's cell phone for text messages, his or her Facebook, or email. The only exceptions are if your spouse has given you specific authorization to access these accounts and you do so on a regular basis with the spouse's knowledge and approval.

Can my wife get copies of my text messages? ›

It is a violation of both federal and state law to unlawfully intercept electronic communication. Any information obtained through this manner by a spouse in a family law case will be inadmissible in court.

Can I see my husband's deleted text messages? ›

You can see deleted SMS on your husband's phone through various means. For example, you can contact his carrier, use a recovery tool to dig up the texts, restore his backup to your phone, or use a tracking app like the AirDroid Parental Control app.

Can deleted text messages be retrieved? ›

If you use Google's Messages app, you can recover your text messages – but only if they are saved in a backup of your phone. If you've set up your phone for automatic backup, you should be in luck. Automatic backup occurs every two hours when your phone is plugged into power and has been idle for two hours.

What counts as text evidence? ›

A. Textual evidence is verified text that has been collected from the original source or document that supports a thesis or an argument, often appearing as a quotation or descriptive text.

Can Imessages be subpoenaed for divorce? ›

This is not a common occurrence, so, in short, the answer is, yes, text messages can be subpoenaed, but, no, they are not frequently used as evidence for the reasons above. Text messages can fall into the murky area of 'hearsay evidence,' which is inadmissible in court.

How far back can police track text messages? ›

If the law enforcement officers go to your cell service provider or Google, they can access information on your text messages and emails if they have a court order. If the police have a subpoena, they can access emails that date back as far as 180 days, whether they are opened or unopened.

How far back can text messages be retrieved from AT&T? ›

AT&T currently stores Your sent and received Messages for up to 90 days. Messages older than 90 days will be deleted from Your Messages cloud storage.

How long do phone companies keep records of text messages? ›

Most cell carriers retain content data between 3-7 days. The exceptions are: AT&T, Boost and T-Mobile which have zero days retention.

What evidence is needed to prove cheating? ›

How Do You Prove It. The person alleging adultery must prove that their spouse committed an adulterous act via direct evidence (e.g., eyewitness accounts; admissions by the guilty spouse and/or the paramour) or, more often, via circumstantial evidence.

Are text messages protected by spousal privilege? ›

In both civil and criminal cases, communications made between spouses during the marriage are privileged if the communication is intended to be private and made in reliance on the sanctity of marriage. Even if the marriage is terminated because of divorce or the death of one spouse, this privilege could be asserted.

What proof do you need for cheating? ›

Evidence must show that the infidelity occurred during the marriage, which includes any time during a separation. Clear and positive proof is required to prove adultery in court, although it can be established by direct or circumstantial evidence, including emails, photos, texts, social media, and other documents.

Is it illegal to read your spouse's text messages? ›

U.S. Laws On Spouse Spying

It is also illegal to hack your spouse's cell phone for text messages, his or her Facebook, or email. The only exceptions are if your spouse has given you specific authorization to access these accounts and you do so on a regular basis with the spouse's knowledge and approval.


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