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Can Text Messages and Emails Be Used Against Me in My Divorce?

Divorce "While going through a divorce my soon to be ex-wife went into my cell phone and took pictures of text message conversations I've had with other family members with the intent of using them against me in the divorce. Is this legal?" This is a question I am often asked when sitting across my desk from a potential client who is about to embark on the emotional rollercoaster of obtaining a divorce, or dissolution of marriage. The answer to that question is not always cut and dry, and there are implications regarding this type of evidence that can carry very severe consequences.

Texts and Emails as Evidence

When a dissolution of marriage is contested, evidence is necessary to prove your case. Text messages, emails, and other electronic documentation have become a major source of evidence in modern divorce proceedings because people tend to forget that what they put in writing may be used against them. When these texts or emails are directed at the opposing party they are fair game in the divorce action, but when they involve communication with a third party or other documentation intended to be private, privacy rights become an issue.

Words of Caution

Emails Both federal and state laws prohibit the interception of electronic communications. If you plan to use texts or emails not directed toward you, you must be able to show that you had authority to access such information. If the parties are already separated, it is unlikely that one would have authority to go through the other’s computer or cell phone, and so the parties should be cautioned against “snooping” through such documentation with the intent to use it as evidence in a divorce proceeding. If the Court deems that one of the parties has unlawfully accessed electronic communications, it is likely that such communications will not be admissible as evidence and the violating person could be subject to legal sanctions. It is always a better idea to use the proper channels to make sure that you obtain the evidence legally. Your lawyer can make sure that any communications you intend to use can indeed be used as evidence. Better to be safe than sorry!

How to Legally Obtain Electronic Communication as Evidence

A subpoena is a written order, which either requires a person to appear in court or to submit records or documents into evidence. A subpoena is a useful tool in the discovery stage of a divorce action, especially if one party needs to access private information; a couple examples include emails on the other party’s hard drive or getting text messages directly from the cell phone provider. However, only an attorney can subpoena this information for you. Unless you are in the rare position that you and your soon-to-be-ex agree on everything regarding your dissolution and therefore you don’t need the inclusion of evidence or a subpoena, then it is probably wise to seek the help of an attorney.

Conclusion

Also remember that you must be able to authenticate the evidence, or prove that the person accused of sending an email or text message is indeed the person who sent it. Just demonstrating which computer, email address, or phone it came from is often not enough. There is a lot to think about when dealing with dissolution proceedings, you don’t need to figure all of it out by yourself. If you aren’t careful and try to procure evidence on your own, it may be thrown out or even used against you. It is always best to go through an attorney and the Court to determine what can be used as evidence in your divorce, and it is never a good idea to go through the other person’s personal belongings in an attempt to prove your case. Keep in mind that if you illegally obtain evidence, you may be arrested, convicted of a felony, and whatever evidence you obtain will be inadmissible in court.

If you have questions about a dissolution of marriage action, please seek the assistance of an attorney who practices in the area of family law, custody disputes, dissolution of marriage, divorce, and child support.

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