Can Text Messages Be Used in Divorce?

• March 16, 2022
• Lingold Spencer
• Family Law

Can Text Messages Be Used in Divorce?

Text Messages Can Be Used as Evidence in Certain Conditions When Divorces Are Contentious.

Couples about to divorce sometimes use text messages to make heated arguments, send threatening messages, converse with secret lovers, and discuss wrongdoings. When a relationship ends, these texts can become evidence against the other spouse to win child custody battles or obtain certain marital assets. This is why it’s important to know how text messages may be used in a divorce proceeding.

While incriminating text messages and other personal electronic communications are increasingly being used as evidence in divorce proceedings, in order for a text message to be usable, it should be authenticated. Usually, this means proving that your ex-spouse sent the messages and verifying that a third-party individual did not use someone’s computer or phone to send texts without anyone knowing. Without authentication, courts may look at the messages as hearsay.

How Text Messages Are 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.

Contentious Divorces Are Complicated

Since most divorces today are no-fault divorces, chances are that if you are considering using your spouse’s text messages as evidence, you are in a situation where you are trying to get a divorce on at least one specific ground and the divorce is contentious. Mississippi laws are complicated, and making mistakes can be costly and impact your life and the lives of your children for years, so it can help to have a lawyer experienced in divorce issues fighting on your side.

In Mississippi, if you file an at-fault divorce, you have the plaintiff’s burden of proof or you won’t get a divorce. To improve your chances, you need to document the grounds for divorce, have witnesses to back you up, and produce credible evidence such as authentic text messages. The Florence divorce attorneys at Ringer, Lingold & Spencer are fully prepared to use text messages and other valid methods to build evidence that will support your divorce complaint and to defend you if your spouse is using them against you.

Our lawyers have over 20 years of experience practicing in courts all over the state of Mississippi, offering faithful service and representing the best interests of our clients. We live here, work here, and love here. Our Mississippi-proud lawyers have winning results. It makes sense to contact our attorneys immediately, even if you are just thinking of divorce, and certainly if you have been surprised by divorce papers from your spouse.

Can My Texts Be Used Against Me in a Divorce?

To Use Your Texts Against You, Your Spouse Has the Same Burden of Authenticating Your Texts.

For Mississippi’s version of a “no-fault” divorce, you still have to claim at least one fault-based ground for divorce and/or irreconcilable differences. If irreconcilable differences is the reason given, this must be agreed to by both spouses. If you wonder, can my texts be used against me in a divorce? The answer is yes, and they may be used to prove you were at fault. If your spouse is the plaintiff and is suing you, your spouse may be able to use authenticated text messages you sent to help prove at least one of the following fault-based grounds:

• Natural impotency
• Adultery
• The spouse was sentenced to prison and wasn’t pardoned before going there
• Willful, continued desertion for at least a year
• Habitual drunkenness
• Habitual and excessive use of opium, morphine, or other similar drugs
• Habitual cruel and inhuman treatment
• Insanity or idiocy during the marriage, if the other spouse didn’t know of it at the start
• Marriage to another when the two allegedly married (bigamy)
• Pregnant by another person at the time of the marriage, if the husband was unaware of the pregnancy
• The spouses are related to each other enough to make the marriage illegal (incest)
• Incurable insanity and the defendant has been confined in an institution for at least three years immediately before the divorce filing.

Text Messages Are Not the Only Concern

Social Media Posts Can Also Be Used Against You in a Divorce.

For some of these grounds, most commonly adultery, abuse, or other negative actions, your text messages and email or social media posts on sites such as Facebook, Twitter, Instagram, or WhatsApp, may be used as evidence against you, whether or not you want the divorce. In addition, it is not just posts on your own social media wall that are public, but also comments on other people’s walls that may be used as evidence.

Obviously, anyone even considering divorce should be extremely careful about what texts they send or what posts they make on public social media platforms. While lawyers may subpoena a cellphone provider for records of contact between two people, lawyers cannot actually subpoena text messages as providers do not record this information.

How Privacy Laws Can Play a Role

Also, there are certain federal and state privacy rights that prohibit the unlawful interception of communication over electronic devices and can prevent certain messages from being used during a court proceeding. If incriminating emails were obtained without proper authorization, messages may not be permissible in the divorce hearing because they were not gained legally. However, an attorney may gain access to private text messages and emails through a subpoena, and the ex-spouse’s attorney can take legal steps to deny this request.

In any case, text messages are open to interpretation in a completely different way than you originally intended, so it is best not to send anything inflammatory or that could possibly be used against you by your divorcing spouse. Speak to your lawyer about the proper way to get text message records and help determine what impact text message evidence could have on your case.

Do You Have Questions About Your Text Messages?

Our Divorce Lawyers Can Help Identify Potential Issues.

Divorce is one of life’s major stressors, but the compassionate Florence, Mississippi, divorce lawyers at Ringer, Lingold, & Spencer know what you are going through and are here to help if your marriage is ending, so you can start a new life for yourself and the children. If you’re thinking about a divorce or have decided it’s the right choice for you, you need legal help to effectively negotiate for you and argue your case in court. If you’re worried about text messages you’ve sent or social media posts you’ve made, it’s important to understand how they may impact the outcome of your divorce. The consequences are too important for you to try to handle this by yourself.

You can trust that we will be honest with you, fight hard to protect your rights, and treat you with respect. We have winning results and provide faithful service to our clients, no matter the challenges they face. Call us at (601) 845-5050 for a consultation today.