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Should You Hit Send?

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Fear the Cloud

Today, people are texting more and talking less, with today's average adult spending 23 hours a week texting. According to a recent study, Americans exchange twice as many texts as they do phone calls. With that in mind, you would think that we would take a little more care in what we send via text message, but for whatever reason, the social etiquette we show on social media, in person, and on the phone all goes out the window when we text. From lewd photos to incriminating confessions, people will say just about anything via text, all the while mistakenly believing that no one else is watching (or reading). But this could not be further from the truth.

Not many of us understand the “cloud”. That great database in the sky. But rest assured, anything you write or send via text message is stored there and can be accessed at any time—yes, even deleted messages. Because of this, it is extremely important that you refrain from saying anything incriminating or potentially harmful to your character via text message. Especially if you are going through divorce.

Think Before You Send

Divorce attorneys have seen a dramatic increase in the number of cases using text evidence taken from cell phones.

Idle threats. Flippant remarks. Full on rants. Cutting insults. The arsenal of fighting family law clients! Many individuals only send such out-of-character texts because they are hurt, sad, angry, and scared all at once. But if your estranged spouse so chooses, he or she can take those messages and use them as evidence against you in your divorce.

It's easy for text messages to misrepresent your intent and tone, so think before you send. On its own, your text to your spouse about ‘your hatred towards him for breakup of your marriage’ might not make for a strong piece of evidence, but it could be used in conjunction with other exhibits to prove a point against you, such as anger issues. Remember, the opposing side is going to be looking for the slightest hiccups that can be used to paint you in a negative light and advance their own position.

Can You Use It In Court?

The judge will decide; but increasingly, family courts are allowing incriminating text messages and email evidence in divorce cases. But before that text becomes a part of the lawsuit, the judge must answer three important questions:

  • Objection, Your Honor. Hearsay

    This is a big one for the judge. Who wrote it? What exactly are you trying to prove with your text message evidence? If you want to use the out-of-court statements made in the texts as evidence, and you want the court to accept those statements as true, then the texts will likely be considered hearsay evidence. For the Judge to let it in, she must be able to fit it into a hearsay exception

    Party admissions are an exception to the rule, so that if the person responsible for sending the text is in fact your spouse, who is also a party to the divorce, then that is the exception to the rule and those texts are about to be on full display in your divorce.

  • If It's Not Hearsay, Is It Relevant?

    In legal terms, is it “of consequence to the determination” of the case? In layman's terms, “does it relate to something you’re fighting about”?

    Which basically means, if your wife is flirting with an old high school boyfriend on Facebook, it's not relevant if adultery is not an issue in your divorce.

    But if your husband sent text messages to the neighbors telling them what a horrible person you are, and how you would rather burn the house down than to let you have it, those messages might come back to haunt him.

    Keep in mind, if the entire text thread were viewed would it still be relevant?

Is It Authentic?

Can you prove who wrote and who sent it? While it can be difficult to prove authorship and authenticity of a text message or text message conversation in court, it can be done. The judge is going to want to ask you a few questions.

You will be asked if you are familiar with the person sending the text and if texting is a usual way of communication between the two of you. Can you provide details that take away any doubt that the communication is real?

Given modern technology, it's incredibly easy for someone with any kind of tech savvy to fabricate or alter text messages to make them appear to say things that were never stated. It's also very easy to introduce text messages of significant volume that could make it difficult to read through and find any such fabrications.

While our legal system is still in the infancy of considering the validity of your screenshots as pertinent to your divorce, make sure you work with an experienced family law attorney. The attorneys at The Ramage Law Group cannot only help determine what impact text-message evidence could have on your case but also explain how to access text message records.

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