Can I Use Text Messages In My Divorce?

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In any divorce case, assembling the evidence a party will need to introduce at trial is very important. For example, to handle the financial aspect, bank account records or retirement fund statements will need to be admitted. However, you can’t just download a copy and submit it to the court because we have rules about assuring the best evidence will be presented. In the financial records arena, your attorney typically obtains them from the bank or fund or another source of the finances, and your attorney will do so through a specific request under the Business Records Act that verifies under oath the accuracy of the records. Why is this important? To prevent fraud. It is unfortunately not uncommon for parties to doctor financial records, and the only reliable way is to have a third party responsible for making the records attest to their accuracy.

How can we have the same level of accuracy in text messages?

Text messages are clearly important today because so many people communicate via text on their phones, parents included. In a divorce, a party may capture by text very valuable and even damning statements made by the other party or can accurately portray a conversation had by the parties on a particular issue. But to use them we need to have a sense of their accuracy.

One method of assuring accuracy is to take a screenshot of the text. If it is a long series of texts it may take many screenshots, but at least you will have the full thread as seen and stored on your phone, emojis, and times and dates included.

It is also possible that your phone provider stores your messages and could provide a full print out of all messages with dates and times. However, this avenue may not be useful if the provider does not store the texts for very long.

If you use an iPhone, you can download an app called Backup Extractor that essentially pulls all of your text conversations together into a single and easy-to-print report. It even works with other message services like WhatsApp.

What if that seems unacceptable to a court or the other party? In that unlikely situation, you can always present the phone as evidence to the court in a limited way to protect the privacy of the party owning the phone. The party could ask the court to review the messages in-camera, meaning in chambers without the viewing of the other parties or their attorneys.

As you can see, there are many ways to preserve valuable text messages so they can be presented as evidence in court.

If you have questions about text messages and divorce, contact us – we can help.

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