The rise of technology has increased the number of ways that evidence can be gathered to suggest someone’s state of mind or intentions in the years, months and weeks leading up to divorce.

Despite the realization that comments made on various technologies can come back and be harmful during the divorce process, there are still many people who think that their texts won’t be used as evidence in court. However, in many cases, authenticated text messages may be used to indicate a person’s state of mind.

Text messages are often very spontaneous and can often be sent without thinking. People write and send messages that they would likely edit more thoroughly if it for example were an email. These messages may either implicate someone in an act of infidelity, or might suggest that they are being threatening or violent.

Text Messages must be Authenticated
In order for a text message to be used as evidence in a court of law, it needs to be proven who authored the message. This removes the possibility of a vengeful spouse or a nosy friend influencing the case by using the accused’s phone to send a message.

The easiest way to authenticate a message is to get the accused to admit that they wrote the message. If they refuse to admit this, or if they claim they cannot remember whether or not they sent the text, there are other options.

A second way to authenticate the message would be by finding a reliable eyewitness who can verify that they can verify the message being written and sent by the accused.

Lastly, a message can be accepted as evidence if it is “self-authenticated”, which means that it contains information that only the person accused of sending it could know.

Privacy Laws
An exception in these cases is when a spouse unlawfully gains access to text messages without permission. This is in violation of privacy laws and therefore cannot be used as evidence.

Be Careful when you text
Knowing that text messages can be used in a court of law should definitely give you reason to think before pressing “Send”. A reactionary comment might turn into damning evidence against you. Ultimately, you need to be aware that nearly any data that can be tracked could come back to bite you.

If they are authenticated, text messages that were sent and received even years prior to the court case can be used to strengthen or weaken an argument. In extreme cases, computer experts may even be able to recover deleted data.

As a wider percentage of the population becomes familiar with documenting and sharing their lives via text message and in social media, it is becoming more and more common for these messages to be used as evidence in legal disputes.

Consult with a lawyer if you think that text messages written by your spouse may be applicable for your case, or if you need advice on how to resolve potentially damaging messages you may have sent.

Mark Epstein
Epstein & Associates

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