Text Messages and Admissibility
Text messages can be a useful form of communication during the divorce process but introducing them into evidence in court can be tricky. Here are a few guidelines about text message admissibility:
Relevance
Any evidence of text messages presented to the court must be relevant to the divorce proceedings. Texts that contain comments about your spouse may be deemed irrelevant by the court if they do not help prove a legal claim. Typically, the court will determine what is relevant to the case, and considerations such as general topics concerning child visitation, time spending with children, and even issues of infidelity would be considered relevant.
Authentication
Texts must be authenticated, or in other words, established as having been sent by the person you say sent it . In a divorce court, the authenticity requirement can be satisfied by testimony from the recipient of the text that it was sent by the other individual.
If a phone number is provided, the court can deem a text to have been sent by a certain person if the sender types that individual’s phone number when sending the message.
Chain of custody
The court wants to know how the text message came to be, after it has been sent. Text messages should be retained and stored properly so that it can be proven that the text has not been tampered with. The original text message may not be admissible, however, it is recommended to be printed so that the print was taken within the electronic device (i.e. iPhone).
Authenticity of Text Messages
When using text messages in divorce court, your attorney will need to prove the authenticity of each message. While other digital evidence can be allowed in court without this showing, some judges require it for text messages. The authentication process requires that a party show sufficient evidence to support that the document is authentic and can be admitted.
Typically, judges will first authenticate the proffered text messages during a hearing on a motion to exclude evidence. If you are going to use those messages, you will need to meet this standard. This is true regardless of your jurisdiction, although many cities and states have differing rules about authentication.
In California, you must authenticate when you try to introduce text messages as records. The judge must first find that the messages you intend to introduce were "in fact written, signed, or sent or recorded in the manner alleged." In Virginia, electronic text messages that somebody sent are admissible when the proponent can authenticate the message and show that it is relevant to the matter.
For example, if you sent a text to your ex asking him to set up a math tutor for your son, you would need to show the judge that your phone generated the text you have on the screen and that you did, in fact, send it.
One way to do this is through metadata, which is data generated by your phone. Each activity will have a trail of markers related to the activity. The timing and the language can help establish authorship. A judge might look at these factors, but he will likely want to hear from an expert to establish that you sent the text message in question and that you have the originals as evidence.
You cannot just print the text message, although doing this will not necessarily hurt your case. Put this in an affidavit and introduce it to the judge. There are also forensics experts who can examine your smartphone to show that that text message is authentic. Forcing the judge to rely on your word alone about the legitimacy of the text could fall short of the authentication standard.
You will also need to preserve original data, so the evidence you present to the judge will be unaltered. Make a backup in the cloud to protect that data and then print out the messages. Some companies have also developed systems that allow you to log into the account and pull down the originals. Check out Zash Text or CloudEvidenceHQ.com for more information.
Implications of Texts on Divorce
The impact of text messages in divorce court goes beyond the admissibility of evidence. The content of communications, when used in divorce proceedings, can directly affect outcomes in areas ranging from child custody, division of property, to spousal support obligations.
In divorce court, text messages can reveal character and inform custody decisions. A study by the Institute for Family Studies cited a case where a custodial father’s phone and social media activity was used to demonstrate "repeated extra-marital infidelity and promoting a lifestyle incompatible with a stable home environment." This evidence of infidelity informed the decision to grant sole custody to the mother and restrict the child’s visitation with the father. In custody cases, contact records are not necessarily taken at face value, but used in combination with witness statements and other documentation.
The admissibility of text message evidence can also inform the scope of asset distribution. In a community property state, assets acquired during the marriage are typically divided equally between each spouse. In some cases, spouse’s inheritance can be classified differently and excluded from community property. In In re Marriage of Wrinkles, 12 Cal. App. 5th 983 (Ct. App. 2017), wife sought compensation for time spent in an estate-related lawsuit prior to divorce while ex-husband sought reimbursement of expenditures. Evidence submitted included emails and text message sent between wife and wife’s attorney that were excluded under attorney-client privilege. Citing the "close connection" of wife’s testimony to those communications, the court found wife’s testimony regarding her contributions credibly exaggerated the contribution to the estate.
Spousal support or alimony referrals are a frequent topic of divorce proceedings. The amount of a spousal support obligation is typically determined by a computer program – Dissomaster – which considers a variety of factors including incomes, number of children and time spent as a stay-at-home spouse. In California, rates are adjusted upward if one spouse earns an annual salary of under $7,500; $10,000 per month for one child and $13,000 per month for two or more children.
Text messages can be used in prospective spouses’ attempts to avoid higher payments by showing income and investment activity. In Tell v. Tell, 172 Cal. App. 4th 1049 (2009) an ex-husband argued for lower support payments by providing financial records during the period of divorce from his former attorney – a large portion of which were text messages. The appellate court was unwilling to consider additional evidentiary documents submitted by ex-husband that were not provided to the trial court. On appeal, the court reaffirmed the lower court’s decision to lower alimony payments.
Privacy Considerations and Other Legal Issues
While it is easy to see the benefits in using text messages as evidence in divorce court, there are also risks to consider. Privacy laws, both statutory and common, limit what people can do when it comes to gaining access to text messages. To get around these laws, some people may resort to illegal means to view a person’s text messages. This scenario creates a whole new ball of problems that divorcing couples need to be mindful of, especially when making a claim against someone. In divorce court, claims based on information obtained through illegal means will likely be thrown out. This is because the law does not favor watchdog "snoops" who pry into other people’s personal lives . As a result, when considering whether or not to use text messages as evidence in divorce court, divorcing couples need to think carefully about how the evidence was obtained. If the evidence was obtained through illegal means, then it should not be used as evidence at all. When considering a divorce, it is important to keep in mind the legal implications of choosing to use text messages as evidence and the privacy concerns they can raise. With the rapid advance in technology, it is likely we will continue to see divorcing couples use text messaging as a form of evidence. When doing so, divorcing couples should be mindful of the legal considerations and the potential implications that may arise from such action.
Best Practices with Text in Court
The use of text messages as evidence in court is often complicated by the need to prove the messages are what they purport to be. This can involve testimony to the effect that the sender used the phone and was the one who sent the messages. It can also require witness testimony to the effect that the witness knows the recipient’s phone number and the messages were sent to that number.
Witnesses can be other family members or friends who know, for instance, the recipient "always" uses e-mail on his phone but not text messaging. There may also be testimony lettings the court know or showing that, the recipient has used his phone to send or receive text messages, and how he is able to access them.
Be sure the court can tell if the messages were sent after the divorce was filed.
To avoid issues with the court not being able to take some of this testimony to be credible, it is advisable to have friendly witnesses prepared to testify about the origin and receipt of any text messages you intend to enter evidence of in divorce court.
If you’re forwarding text messages to the court, cut and paste so that the relevant message is isolated from other material (including messages from the respondent).
It is not only better to cut and paste the screenshots that are relevant to your case with no other information than the sender’s name or number so the court can see the messages are not fabricated, but it makes it a lot easier for the court to look through them quickly. Do not, after going through a long and expensive process to gather the text messages, forward imprecise or unedited text images into court. This would waste all that effort.
Be sure the court understands that once sent, text messages cannot be altered.
When forwarding text messages to court, you can check with any of the many apps online that will convert text message threads to PDF format that can be printed for submission to the court. It may be worthwhile to isolate any text message threads to PDF before printing.
Consider saving text messages directly off your phone.
Some phones allow you to download text messages directly. Then, you can print the messages to submit them to court.
The best way to go about gathering and forwarding text messages into the record for the court may be to get a lawyer to help you do it properly.
Common Hurdles and Their Solutions
Ensuring that a text message is representative of the entire conversation can be difficult. Oftentimes, we are receiving and sending a message back and forth with another person for a period of time, which is captured wholly by our iPhone without interruption. However, it may be difficult to get the entire text message string into evidence in court. While the entire string is on your iPhone, the court cannot see what is on your iPhone screen. Thus, some creativity must be given to trying to get the entire string in to evidence. When we receive a text from the other person that we feel is important, we should save it or even take a screen shot of our phone to preserve it. Additionally, you can email the text string to yourself, which also preserves it without the email software cutting off the end of the string for you.
For example, if I sent "happy bd," then you sent a message that you had arrived at the restaurant, I might then text you in response saying, "what type of birthday cake did she want?" Then all five of those texts – yours, mine, yours, mine and then yours – should be preserved and admitted into evidence, as long as they are not capable of being reasonably interpreted to have different meanings.
It is perfectly reasonable to believe that when somebody initially tells us that they are happy , that they are still happy when we ask about the cake. If there was any problem, we can then ask follow up questions of the person to clarify what is happening. However, if their responses seem to be different than what they initially seemed to be, then it is likely that the other side will focus on that. For instance, when do we ever call someone who just sent us a message "happy" and then when we ask them a follow up question, they all of the sudden say "not happy anymore?" Furthermore, we may then wonder what things are different about their circumstances if they are "not happy anymore."
We can also use text messages that speak to a common issue facing both parties in a divorce. For instance, we can use text messages to show that one party is a poor communicator. The ability to retrieve archived text messages is actually built into the iPhone, and to turn it on, you must go to Settings, Messages, and then scroll down to Message History. There we can find an option to keep messages for 30 days, which is more than enough time to find something that is relevant. Unfortunately, that does not work with Android phones, plus many of us have set our phones to keep messages for much shorter periods of time. Of course, if any of us know how to increase our record retention, we probably work in an office where our email retention is much longer than a text message retention.