Are you going through a divorce or contemplating a divorce? If so, I’d advise you to be careful about what you send in text messages to your future ex-spouse. In this high-tech era, text messages can be used in court as evidence during divorce proceedings.
But here’s the thing: It’s really easy to dash off a 140-character salvo without thinking. Text messages are quicker and more immediate than email. And texts seem very private because it’s your phone. When a clear state of mind is compromised by high emotional stress, that quick push of a send button can be dangerous.
All social media and electronic communication have the potential to harm your side of the divorce proceedings, if they can be used to show something negative. They are written and visual records that can be subpoenaed.
In fact, in a recent survey by the American Academy of Matrimonial Lawyers, 97 percent of the attorneys who responded said they have seen an increase in the amount of evidence being taken from smart phones over the past three years. Nearly all reported a rise in the number of text messages being used in cases.
The New York Times calls texting the “new lipstick on the collar.” Florida is a no-fault divorce state, so neither spouse has to first prove a transgression like adultery in order to initiate divorce proceedings. However, in some cases incriminating texts could reveal something that would influence a case. An example is texts showing that a spouse lavishly misused marital assets in pursuit of an affair, which could sway how remaining marital property is divided.
For a long time, I’ve advised my clients who email their spouses to first forward the emails to me if they are about anything substantial. This gives me a chance to look over the email and for my client to cool off, if necessary. If I spot any potential trouble in the draft email, we can fix it before sending.
Of course, I won’t be there during back-and-forth text exchanges. All I can say is to follow this standard rule about text messages: Don’t send anything you wouldn’t want the judge in your case to read, too. Period.
To protect my clients against any false accusations from their spouses about texts, I now ask them to routinely download their text messages through a computer app called iExplorer. They can access the app through my office. I don’t read the text messages but if there ever is a problem, we have them on file.
This is an example of what can happen to make retrieving text messages a good idea: A husband said his wife had denied access to his child. He accused her of sending a text message saying he couldn’t see the child. Going back over her text messages showed this wasn’t at all true. She had simply asked if there was another time he could pick up their child who had a schedule conflict. Not allowing access to children is a serious transgression in family law court, so it was fortunate there was evidence that nothing of the kind took place.
Also, please don’t think that incriminating text messages can be erased. There are programs that can reveal erased texts and besides that, the person on the receiving end has the text record, too.
Staying current on technology is now a standard of good practice for family law attorneys. Hiring an experienced attorney who understands trends in technology and how they affect divorce cases is always recommended.
