Yes, they can. Text messages and emails have become common and accepted forms of evidence that can be used in your divorce case. How you secure such evidence can be critical in obtaining desired results.
What Should You Document?
You should document both sides of a conversation as simply presenting one side dilutes its relevance to the Court. Only presenting one side of the conversation also makes it difficult for the Court to understand the context of the text message or email. The other side can also suggest to the Court that the one text message or email presented was selected to point out the worst of that person and place them in a negative light. As a result, you need to capture and present every text message and email sent and every response received with a thread. It will be necessary for your attorney to present the angry, embarrassing responses you sent as well. Your attorney will question you to explain why you responded in that manner and you will avoid the other side presenting them during cross-examination catching your attorney off guard and possibly making you look untruthful to the Court. Worse, your lawyer will wonder what else you haven’t told him.
Are They Admissible?
Evidence isn’t automatically accepted by the Court. For text messages and emails to be admitted into evidence you must prove them to be relevant and authentic.
Think of relevance as being evidence that will assist the Court in making its ruling. For example, in a child custody case, the Court doesn’t care about a text message that states the kids ate ice cream and cookies for dinner; however, the same evidence would be relevant if used to demonstrate which parent had custody of the children on that day and failed to follow the pediatrician’s dietary restrictions for the children’s medical condition. Whether a text message or email is relevant is entirely dependent on the context and facts of an individual case.
You will also need to prove that the text messages and emails are authentic. To do so, you should make sure that nothing has been edited or deleted by you within the thread. You should have the date and time of the text messages and emails be clearly visible. Last, you should make sure the contact information (phone number or email address) for each side of the conversation can be clearly identified.
How Do I Save Digital Evidence?
Screenshots are the most common way to save mobile evidence. It’s free and easy to save. So, if you receive a threatening text message, just take a screenshot instead of replying. If your child’s other parent has called you 50 times over the past two hours, take a screenshot of your call logs. The screenshots will then be saved into your photos folder and can be used during the divorce case.
Screenshots are not the best option if you have a lot of text messages to capture or if you have to go back an extensive number of months.
There are numerous apps and programs for both iPhone and Android that will extract text messages from your phone and download them onto your computer as a pdf. If you are needing to review and present hundreds of text messages to the Court, a text extracting program is worth purchasing. If you are wanting to begin saving digital evidence, consider PwrSwitch or a similar application to collect and consolidate text messages, emails, and phone logs between you and another person. From the time of sign-up going forward, these programs will save all text messages, emails, and phone logs in sequence that is time and date stamped, word-searchable, and save it for you in the cloud. This removes the worry of whether you remembered to take a screenshot or saved the important text message or email when received and provides you with one location to obtain the evidence needed.
Should you need the advice of a divorce attorney or have questions or concerns about your situation, know that we are here to help and discuss those issues with you.