Your Text “Shall” Be Used Against You

Posted: 18 October, 2021

The prominence of texting and social media has altered evidence used in a divorce.  You need to be careful when it comes to your texts, emails, and social media posts.  What you text “can and will” be used against you in divorce court.

In any contested divorce, both sides are looking to persuade the judge.  There are no jury trials in divorce court.  Which means they need to produce evidence which substantiates their case.   For example, if you are asking for your spouse to cover half of the credit card debts, you need credit card statements.  If you are asking for your inheritance to be your separate property, you need proof of the gift. If you are asking for primary custody, you need to proof the other parent isn’t co-parenting.

Spouse testimony, witness statements, and expert witness reports are the standard forms of evidence used.    However, text messages, emails, and social media posts are increasingly becoming the main way to support claims. A few years ago, a survey indicated more than 90 percent of divorce attorneys were seeing an increased use of digital messaging in divorce cases.

Text Messages Are Statements

As texts and emails have become a main tool for communicating, they have become important evidence that can be used against you.   Text emails and social media posts are useful  because they are statements by the opposing spouse   A text or email from the opposing spouse confessing to a debt, or confirming an agreement, or fighting with the mom,  support an allegation to such things  More and more divorce lawyers are submitting these messages as evidence to support their claims for custody,  for marital waste, or for agreements to take on debts.

Virtually everyone who has watched Law & Order knows, “You have the right to remain silent”, “If you give up the right to remain silent, anything you say can and will be used against you.”  In divorce court, it seems to slip their mind that texts and emails are the same as a statement.   These messages may be years old, and resurface during the divorce to evidence custody schedules, agreements to child support amounts, disparaging remarks, or affairs.

This information often surprises the other spouse.   A text or email from years ago can come back to haunt them.   Not only can old messages be used against you in your divorce, there is a good chance these messages will be taken out of context.  When the message was sent, or what was happening at the time can get lost.  Maybe you were separated at the time.  Maybe you just found out he cheated. The context surrounding the message is often lost.  Only the content of the message is seen.   Without the context the content of the text message can look more damaging than it really is.

Keep in mind that the opposing attorneys in any divorce will be looking for anything that will help them make their case, Your text messages and social media posts may be exactly what they need. For example, if you are fighting for custody they might show an angry text you sent.   Or, if you are denying knowing about a debt they will show a text with you approving the purchase.   Don’t provide them with more ammunition to use against you.   Text messages are little bits of dynamite.   They can explode a case at any time.

Text Messages Are Admissible

Many may assume text and email messages are personal, secret and confidential.  The fact of the matter is, once a text message is sent, you can’t take it back. Several high-profile cases in recent years have made that clear.  Remember the infamous divorce case involving Tiger Woods, whose “private” text messages to the various women he had affairs with were broadcast in the news.  Similarly, the careers of several members of Congress were all upended after batches of their text messages were released to the world.  The text isn’t private or confidential because you sent it.  By sending a message you have made the statement public.

You might be saying, “those messages are hearsay” and cannot be used.  Hearsay is a court rule that doesn’t allow out of court statements to be used as evidence.    The court doesn’t want a witness to say “Bob said this”, or “Bob said that”.   The court wants Bob to testify to what he actually said.   Hearsay statements are not admissible unless there is an exception.  Your text message is your statement and this is the most common exception to allow hearsay statements into court.

It is important to always remember that, these days, emails and text messages can also be retrieved and used by anyone, including a party who was not the recipient of the message.  In a divorce, an ex-spouse may need to produce emails or text messages.  Requests can be made to allow inspection of the entire computer, tablet or smartphone. A computer expert can often retrieve emails and documents even after they were erased from the hard drive.  Text messages and emails can also be retrieved by issuing a subpoena to the cell phone provider.

Put simply, if you are worried about some of the texts or emails you may have sent at one time, your worry is well-founded, since the other party’s attorney can get their hands on them anytime. If your spouse goes into your cell phone and takes screenshots of text messages, it is possible they will be able to use them against you. That’s why it’s important to avoid sending text messages that could come back to bite you.   Even if it doesn’t seem to matter now, it could place you in a bad light in the future.

The best time to think about which texts can be used against you is just before you send one. If you think there is even a possibility you’ll one day be in court, you should consider every word of every text message you send. Make sure the tone puts you in the best light, that your meaning is crystal clear, and what you’re about to say cannot be used against you.

In conclusion, be careful with your texts, emails and social media posts.  Remember that whatever you type or post can and will be used against you.