With today’s heavy influence on technology, more and more people use text messages and email their preferred methods of communication. During a contested divorce, it is sometimes necessary to provide evidence that supports an individual case for abuse or other negative actions. Under certain circumstances, it is possible to use text messages as supporting evidence during the proceedings.
In order for a text message to be usable in a divorce case, it must be authenticated. To authenticate a text message, the other party must readily admit to the text, a witness must attest that he or she saw the message being created, or reply authentication must be demonstrated. This is a reply text clearly written in response to an initial message. A smart way to track a text message is for the recipient to save it on the phone. There will be a picture that shows the exact conversation or message with the cell number or name of the sender at the top of the screen. Although it is becoming common for a lawyer to subpoena a cellphone provider for records of contact between two people, it is impossible to subpoena actual text messages. The cell providers do not record this information. It is essential to be proactive and take measures to make the authentication process easier.
Hearsay is an issue that must be addressed before a text message can be admitted to a divorce case. A text message can only be used in court if it fits a hearsay exception. These rules are confusing, but an experienced attorney should be able to determine whether or not the text is admissible.
If a person relies heavily on social media as a means of communication, it is smart to resist posting negative information about a spouse during divorce proceedings. The same advice applies to text messages as well. These messages constitute an invisible paper trail that may come back to haunt the sender.