We live our lives on our phones.
We text our spouses. We text our children. We discuss money, parenting schedules, arguments, relationships, and sometimes things we probably shouldn't put in writing at all.
So it's not surprising that I frequently see text messages become important in New Jersey divorce cases.
But there are really two different questions here: Can text messages be used as evidence in your divorce, and how are you legally allowed to get them?
Depending on the issues in your case, text messages may help establish what someone said, when they said it, or how they behaved.
For example, texts may become relevant to parenting disputes, financial issues, threats, agreements between spouses, or contradictions between what someone says in court and what they previously said in writing.
That doesn't mean every nasty text your spouse has ever sent belongs in your divorce case. Evidence still needs to be relevant, and there may be questions about authenticity, hearsay, privilege, completeness, and context.
A single screenshot without the surrounding conversation may tell a very different story than the entire exchange.
This is where people need to be careful.
Having a text message that was sent directly to you is very different from trying to obtain private communications between your spouse and someone else.
Don't assume that because you're married, you're entitled to secretly access your spouse's phone, email, cloud account, or other password-protected communications.
And don't assume your divorce lawyer can simply subpoena a cellphone company and receive the complete contents of your spouse's private text-message history. Electronic communications can be subject to significant federal and state privacy protections.
The proper way to obtain electronic evidence depends on what you're seeking, where it's stored, who possesses it, and why it's relevant to the divorce.
If you already legally possess text messages that may matter to your case, don't delete them.
Preserve the complete conversation when possible, including dates and identifying information, rather than saving only the one screenshot that appears most favorable to you.
Then show the messages to your divorce lawyer and let your lawyer determine whether they're actually useful.
Don't hack into accounts, guess passwords, impersonate your spouse, or secretly access communications you aren't authorized to view just because you think you'll find something helpful.
Getting the evidence improperly can create a much bigger problem than whatever you hoped to discover.
There's another lesson here that may be even more important.
Assume that anything you send electronically could eventually be read by someone else.
Before sending an angry text to your spouse, ask yourself how it would sound if a Family Court judge were reading it months from now without hearing your tone of voice or knowing what you were feeling when you wrote it.
Sometimes the best text message during a divorce is the one you wait ten minutes and decide not to send.
Electronic evidence can be extremely useful in the right case. But obtaining and using it isn't always as simple as taking a screenshot or issuing a subpoena.
If you believe text messages or other electronic communications may be important to your New Jersey divorce, talk to your attorney about what you have, what you need, and the proper way to obtain it.
Until next time,
Steve