How to Use Text Messages and Emails in Your Divorce Case

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.

How are Text Messages Authenticated for Use in Divorce Cases?

The easiest way to receive authentication of texts is to get your divorcing spouse to admit to creating and sending the messages, but in contentious situations, this may not be possible. The court may also allow a third-party eyewitness account in situations such as where a mutual friend may claim to have witnessed the ex-spouse craft the electronic message. You can also take a picture that shows the exact conversation or message with the cell number or name of the sender at the top of the screen.

In addition, the courts will consider how the text messages were obtained. If the message was sent directly to the spouse’s phone from the other spouse, or if it is a personal computer that is used by both spouses, a judge may allow texts to be admitted as evidence. Some courts are less strict and may accept circumstantial evidence, such as when a message contains information that only the ex-spouse would be aware of.

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 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.

Can Text Messages Be Used in Court to Prove Adultery?

Missouri is a no-fault state, meaning you don’t need to prove the other party of any marital misconduct to get a divorce. However, a spouse may want to assign fault or otherwise bring certain evidence into a case for various reasons. 

Infidelity is a common reason for getting a divorce in Missouri. Infidelity itself is not illegal, but proving an affair can potentially give one party the upper hand in a divorce case. Providing evidence of infidelity can potentially affect the way your property is divided because of marital funds being spent to maintain the affair in question. So, if text messages prove an affair, they could be admissible as evidence against you.

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.

Text Extractors

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.

Numerous apps and programs for both iPhone and Android will extract text messages from your phone and download them onto your computer as a PDF. If you need to review and present hundreds of text messages to the Court, a text-extracting program is worth purchasing. If you want 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 a 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.

What If I Deleted My Text Messages?

Deleting text messages does not mean they disappear forever. Once it’s been sent, it exists in one form or another. Aside from screenshots, your spouse may also have the right to request a copy of call or text message logs from your phone service provider. These logs can include details such as the recipient’s phone number and the timestamps of each message.

Should you need the assistance of an experienced divorce and child custody attorney in Creve Coeur and O’Fallon or have questions about your divorce situation, know that we are here to help and ready to discuss those questions with you.

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