The Impact of Email and Text Message Evidence in Divorce Proceedings

Divorce proceedings have significantly changed with the advent of digital technology. Today, attorneys frequently acquire digital records and successfully admit them into evidence. The way the courts treat digital evidence today is shaping the judicial system of the future. California courts often admit email and text messages into evidence, which can significantly change the outcome of a divorce matter.

Gathering Text, Email, and Other Digital Evidence

Individuals can use any personal emails, texts, and social media posts in their possession in a divorce case. The content on your phone, your personal email account, your personal social media account, and public forums are fair game. You can even go back through years of communication records to illustrate verbal abuse, challenge your spouse’s character, or highlight various acts of wrongdoing.

In addition to your own content, you may have access to any content on a shared computer – especially if you purchased the computer as a married couple. Your attorney can acquire a subpoena forcing your spouse, social media companies, and others to relinquish emails, text messages, and other information.

Spouses may not however, use private and protected communications. For example, hacking into your spouse’s password protected account, sneaking onto a personal device without the person’s approval, and looking through your spouse’s work computer may all violate privacy rights. Similarly, you cannot record your spouse without his or her consent to create evidence for divorce proceedings. The court cannot admit illegally acquired communication evidence.

How Courts Determine Email/Text Admissibility

Before you try to gather as much information about your soon-to-be ex-spouse as possible, the court will only admit evidence that meets admissibility requirements. The email or text exchange must prove or support some important fact of the case (relevance), meet authenticity rules, overcome hearsay rules, meet original writing rules, and offer substantial probative value. Proving relevance is often simple, but proving the latter requirements can be more challenging.

An admission of authorship automatically proves authenticity, but some individuals may not readily take ownership for the content. Other ways to prove authenticity include securing an eyewitness who saw your spouse write and send the email or text message or using circumstantial evidence. For example, if the message contains information only your spouse would know, the courts will likely accept its authenticity.

Admitting emails and text messages requires the same level of scrutiny and support as any other piece of evidence. Your divorce attorney can help you determine which messages are worth admitting and develop a strategy for meeting admissibility requirements.

Digital Evidence Is a Double-Edged Sword in Divorce Proceedings

If you can gather information from emails, text messages, and social media posts, your spouse can do the same. Often, parties to a divorce will cull the information that supports their case and leave contextual references out. This can make someone appear very undeserving of support, assets, and even child custody. For this reason, you may want to keep records of your own communications to counter the meaning of any evidence admitted against you. Context matters in digital communications.

An experienced Sacramento family law attorney can help you with digital evidence including emails and text messages in many ways. Your legal representative will help you acquire digital information you can use in court to support your case, protect you from unfair information your spouse may use against you, and help you mitigate the risk of your digital presence during and after your divorce.

With an understanding of how people use digital communications in divorce proceedings, everyone should consider the consequences of their digital communications. What you say today in jest or seriousness could come back to haunt you tomorrow. To protect yourself in an increasingly digital world, never post anything on a public or private message forum that you wouldn’t feel comfortable with others seeing. Even joking about “taking your spouse to the cleaners” in a social media post could hurt divorce proceedings.