Technology, Evidence and Divorce – Let’s Talk About Text Messages

Over the years, new technology has become increasingly common in divorce cases.  In fact, it is rare that that one or both parties doesn’t rely on some type of evidence from their phone or computer. It makes you wonder what these cases looked like before smart phones, social media and even (I’m dating myself here) the Internet.  Due to the large role technology plays in a legal divorce case, it’s critical to be mindful of one’s digital footprint (and how it can be used against you) and how to preserve that evidence so it can help you.  Today, let’s focus on text messages.

Text messages

Let’s be honest, we text to communicate for most things these days.  The good and bad news is that text messages create a written record of events that many of us wouldn’t remember otherwise.  The golden rule here is simple – do not delete your text messages with your Ex.  I hear all the time how clients delete text messages because they didn’t want to see them anymore, hated the thought of them being on their phone or they were simply too upsetting.  From an evidentiary standpoint, that is risky.  Those text messages may be helpful to prove a point or allegation down the road.  Or, they may be useful in defending against an allegation. 

For example, let’s say one parent is accusing my client of keeping the children from him.  If my client can produce text messages from different dates, where she is offering for him to spend time with the children, it will go a long way towards disproving his allegations.  If she deletes those text messages, then it’s her word verses his, and her defense gets a lot harder.  But what if she can’t stand having those text messages on her phone?

Retaining the Evidence

First off, I always recommend keeping text messages on your phone in their original format.  However, if you absolutely can’t stand having them on your phone, there are two steps one can take.  First, take a screenshot (a photo of what is on your screen) of the text messages.  Be sure to capture the dates and times.  Make sure the screenshots show a little piece of the prior message so the series reads together. 

Second, email them to yourself.  Use or create an account your Ex doesn’t know about.  This is also a good practice if you are concerned your Ex will access your phone to delete any text messages.  You may never need them, but with evidence I always adhere to a simple rule – it’s better to have it and not need it than need it and not have it.