No matter the location, we can easily send emails, texts, or direct messages from social media accounts. However, these electronic messages also can show the negative side of a relationship. Couples can get into heated arguments, send threatening messages, converse with secret lovers, and discuss criminal wrongdoings.
Open Records and Subpoenas
When a relationship ends, these electronic messages continue to appear in divorce hearings as incriminating evidence against the other person to win child custody battles or obtain certain marital assets. Some people argue that such messages are private and confidential. However, anything placed in writing can be used as evidence, as ex-spouses continue to bring printed text messages, emails and direct messages to court.
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When it comes to admissibility of these electronic messages, the important factor to consider is how the messages were obtained. Messages may also be allowed in court if it is a personal computer that is used by both spouses. There are certain federal and state privacy rights in place that can prevent certain messages from being used during a court proceeding.
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Most laws prohibit the unlawful interception of communication over electronic devices. In other words, if a person believes their ex-spouse was committing adultery through email, and attempts to get those incriminating emails without proper authorization to the private computer or smartphone, the messages would not be permissible in the divorce hearing because they were not gained legally.
Any electronic messages used as evidence in a divorce court has to be authenticated. So, a person will have to prove that it was their ex-spouse who sent the messages.
‘Digital lipstick on your collar’
The easiest way to receive authentication is to have the ex-spouse admit to creating and sending the messages. The court may also allow a third-party eyewitness account where a mutual friend may claim to have witnessed the ex-spouse craft the electronic message.
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Some family courts are lax regarding authentication of text messages and emails. This article will explain what you can expect if your spouse attempts to involve your lover in your divorce. About a third of states, including California and Florida, offer only no-fault divorce, where a spouse can file for divorce only based on irreconcilable differences or other limited grounds.
On the other hand, even in the no-fault states, if you transferred marital funds to your lover or spent large amounts of money conducting the affair, a court may order that you reimburse those funds to your spouse and will likely allow your spouse to subpoena your lover in order to get information relevant to deciding financial issues. In these states, not only can your spouse subpoena your lover, but your lover may be required to give personal and detailed information about your relationship. To learn about the law in your state, visit our series of articles on how adultery affects alimony in your state.
In fault states, your spouse can subpoena your lover by having a process server hand-deliver a subpoena directly to your lover at home or work. Some states also allow subpoena service by certified or registered mail.
Text Message Evidence in Divorce Litigation
Your spouse may also call your lover as a witness during trial. Often, the adulterous spouse is willing to make certain concessions in the divorce case to avoid an affair coming to light in a public courtroom. Although rarely prosecuted, adultery is illegal in most states, which can have an interesting effect on divorce strategy. While asserting your Fifth Amendment privilege is essentially admitting the affair, it at least can protect you from further embarrassment in court.