Text Messages are Being Used as Admissible Evidence in Texas Divorces
When preparing for a divorce, some people take screenshots of text messages to use as evidence. People find out about other’s text conversations in all kinds of ways. A spouse reviewing the monthly cell phone bill might notice an increase in the number of texts on the family plan or a strange phone number that keeps appearing. Spouses might also save text messages sent directly to them by their partner when on threatens the other or is caught in a lie.
In Texas divorce cases the initial Standing Orders that apply at the beginning of a divorce may apply to text messages and the order not to delete or alter electronic records. Even though some people try to delete their own text messages before divorce, others may already have saved and printed them.
When it comes to divorce strategy and conflict, Mark L. Scroggins says to think before pressing send and if you have any doubt, do not hit send. Everything you say can come back to haunt you.
How Do You Get Text Messages in a Divorce?
There’s nothing like texting the wrong person to blow the cover on an extramarital affair. When the slip gets back to the divorcing spouse, their lawyer might send a subpoena to the individual’s phone provider. From the provider, there may be records of incoming and outgoing communications which can be used in court to prove someone was texting another.
If the person who sent or received the texts is willing to help you and offers, they can submit and affidavit or testify as a witness in a deposition or hearing.
When specific text conversations at issue your divorce lawyer can send a discovery demand to the other party to produce the text messages. If they refuse, the court could order them to produce the messages. However, a sender may have gone to great lengths to delete their messages and make their phone or device unavailable.
Beware of Fake Text Messages and Catfish
Technology can be a great tool for communicating and finding information. Technology can also be a tool for lies and deceit. People interfering with others and trying to get revenge might find a way to send fake text messages to upset them or get another in trouble. The manipulation of text message and communication technologies are becoming more common and add additional sets of questions about the authenticity of text messages.
Catfishing or being a catfish refers to someone making a social media profile with the name and pictures of someone else. When people create fake identities, they can also send text messages. For example, someone creates a fake account appearing to be someone you know in your community and they saw your spouse having dinner with another. The person who you think you know also has screen shots of text messages they said they sent to another friend, potentially also fake, who confirmed the seeing the spouse at dinner. The entire reality created in this example is fake, but not to the person who is getting scammed and believes the dinner took place.
The example of people using fake social media and text accounts should put us all on alert that the source of the text messages may not be legitimate. This situation is a perfect example why it can be challenging to authenticate and use text messages as evidence.
Are Text Messages Admissible Evidence in Divorce?
When you can prove who sent the text messages and can prove you have an authentic copy, text messages are admissible evidence. To be admissible the texts must be accurately authenticated. This follows the same procedure when offering other types of evidence. When the texts are produced through a subpoena, the produced documents are helpful in proving the authenticity of the texts.
Authenticating the source of text messages is challenging. There are cases of people using technology to pretend they are someone else and send threatening messages to themselves and saying another person sent those texts.
Objections to text messages include the hearsay rule against out of court statements offered in court to prove the truth of the statement. Other objections are for relevance, prejudice and the best evidence rule.
How the text message was obtained can also affect admissibility in court. Accessing their texts without permission does not work and there are penalties for attempting to use illegally obtained evidence.
When Is Going After Text Messages Good Divorce Strategy?
Damaging statements or threats of another sent by text can be important when proving the allegations in a Protective Order hearing. In other instances, such as proving adultery, the proof of communications someone denies can help your case.
What about litigating contested custody issues and making allegations about who is the better parent? Beware that using text messages in certain conflict situations can cause more harm than good. Opening the door to everything you said to your partner can hurt your credibility and come back to bite you.
Experienced divorce lawyers in high-conflict divorces know when to use text messages as evidence and when to use other evidence to prove allegations.
Mark L. Scroggins says if you have any doubt, do not hit send. Board-Certified in Family Law by the Texas Board of Legal Specialization, Mark L. Scroggins and his talented team of trial attorneys, paralegals and support staff at Scroggins Law Group, LLC advise and represent people and families with high conflict divorces.
For a confidential consultation about your own concerns about text messages as evidence in divorce or any other challenging issue, call Scroggins Law Group at (214) 469-3100.
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*Mark L. Scroggins is *board-certified in family law by the Texas Board of Legal Specialization. Unless otherwise noted, other attorneys are not *board-certified.
**Super Lawyers (a Thomson Reuters service, awarded to Mark Scroggins 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021)
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