Are Text Messages Acceptable Evidence in NJ Divorce Court?

It’s never been easier for us to communicate with our family and loved ones via emails, social media direct messages and text messages, but these electronic messages may also potentially portray the negative aspects of a marital relationship.

In order to be successful within any kind of contested divorce proceeding, it’s important to be able to provide legitimate evidence that proves your case. Texts and emails have begun to emerge as one of the most important types of evidence within divorce settlements.

There are several ways in which text messages may be utilized in divorce court, and it has become a lot more than the ubiquitous ‘digital lipstick on your collar’. When relationships end, all electronic messages are still available to both parties, and they are many times utilized as incriminating evidence against an ex-spouse in order to win child custody battles and other familial assets.

Our team of New Jersey divorce lawyers has been vigilant in utilizing text messages and other electronic data in order to support countless clients when it comes to gaining the evidential leverage they need to obtain their most favorable divorce settlement outcomes. On this page, we’re going to discuss the admissibility of text messages, the necessary steps to obtain text messages via a subpoena, and when text messages are not allowed within divorce hearings. 

So if you are currently undergoing a divorce and are wondering what your options are in terms of bolstering your overall standing within the court, don’t hesitate to call us at 201-880-9772 or request an appointment online so we can delve deeper into your current situation and devise the best legal strategy available to you. 

Admissible Use of Electronic Messages in Divorce Hearings

Since about 2012, around 90% of divorce attorneys have reported that they’ve utilized digital messages throughout hearings. There are some arguments throughout the industry that these types of messages are confidential and private, but when it comes down to it anything placed in writing can be utilized as evidence.

This is why we’re continuing to see countless ex-spouses provide emails, direct messages and text messages to court. 

The overall admissibility of electronic messages is still a very important factor, and this is because the way the evidence was obtained is always a major consideration. 

Text Messages and Emails Sent Directly to an Opposing Party

A lot of people believe they are fully aware of the ways in which the law works around obtaining digital evidence within family court, and the overwhelming number of parties who come to family court prepared with printed text messages and emails sent from their opposing party is a clear indication as to the trajectory of this type of modern, sometimes controversial, evidence. 

If you’ve received text messages from your ex-spouse, you can always upload these messages through a computer and have them printed out utilizing a smartphone app. But verifying the validity of these text messages is sometimes easier said than done.

There are many instances in which text messages can be utilized to show evidence of verbal/sexual abuse, any type of admissions towards wrongdoing, and any other messages that an ex-spouse wouldn’t have wanted to send in the past if they had known it could be used as evidence against them in divorce proceedings. 

Other Electronic Evidence

These days, there are a lot of ways in which text messages and emails can be retrieved by a party who didn’t originally receive the messages, but the validity of this evidence is always scrupulously analyzed. There are instances in which parties can request a thorough inspection of an entire computer, and that’s when a computer forensics expert can legally retrieve controversial documents and emails that may have even been erased from within a hard drive.

There are laws that prohibit any kind of unlawful collection of electronic communication, so everyone should be cautious when it comes to accessing their ex-spouse’s computer without their permission. Doing so may end up resulting in the exclusion of the electronic evidence, and can subject individuals to certain sanctions and criminal prosecution.

But many spouses, of course, will access the same computer or work on each other’s personal computers, so there are some instances in which accessing devices that were purchased with marital funds is permissible, but there are very important exceptions, one of which is to prove that you had authority, express or implied, to access the device where the digital evidence was stored. 

Text messages may also be retrieved by utilizing a subpoena to a cell phone provider. Only an attorney can subpoena these types of documents, and you’ll have to be able to provide a good reason for requiring private messages in order to be successful. The other party can also take steps to legally deny the access of some of these documents, so it’s important that you understand this process so you can ensure you’re doing it by the book. 

4 Necessary Steps to Obtaining Text Messages through a Subpoena

It’s important to understand cell phone providers only temporarily keep the overall content of a text message for about three days, so there tends to be a limited time in order to obtain any substantial evidence from data carriers. Many carriers also utilize the Stored Communications Act to deny subpoena requests.

But there are certain steps you can take in order to get text messages by subpoena, including the following:

1. The best thing you can do is to get in touch with the cell phone carrier and tell them that the specific content of your ex-spouse’s text messages need to be preserved because they are legal evidence in a divorce proceeding. You should always have an experienced divorce attorney craft this letter, which will cite the necessary provisions within the Stored Communications Act and any applicable New Jersey state laws. This letter must be certified and sent via overnight delivery.
2. Next, you must prepare the subpoena that seeks out the relevant text messages that will support your case.
3. The third step is to file an application, or where appropriate an ex parte motion, within your divorce court proceeding that requests to court order your ex-spouse to sign a notarized consent to release the content of the text messages.
4. The last step is to serve the subpoena.

Authenticating Electronic Evidence in Court

Any electronic data that’s utilized as evidence within the divorce court must be authenticated, which means you’ll have to prove that your ex-spouse was the one who actually wrote/sent the messages. The easiest way to get this type of authentication is to have your ex-spouse simply admit to creating the messages, but this is, of course, a lot easier said than done.

A third-party eyewitness to the creation of the messages can also be utilized to authenticate certain digital data, but this is rarely an option. This is why many family courts will accept some circumstantial evidence to authenticate digital messages, a common example being that the messages contained certain information that only your ex-spouse would know. 

Authentication of text messages and all electronic evidence is important in all legal proceedings because it helps courts verify that there wasn’t any third party involved that used an individual’s phone or computer to send pseudo-incriminating messages to their spouse.

Electronic evidence is good to use to prove or support a very specific legal claim, but not often used to “prove” that you want a divorce since most people file for divorce under irreconcilable differences unless there is an important reason not to, which your divorce and family law attorneys can discuss with you further.

Speak with a New Jersey Men’s Rights Divorce Lawyer to Receive Legal Help with Your Divorce matter.

Divorce matters are always a very time-consuming and stressful situation for all parties involved, and this is especially the case when child custody and when you have to discuss dividing all other assets. This is why it’s always crucial to work with an experienced, successful legal team that has handled countless divorce and family law matters.

At Mr. Men’s Rights Divorce & Family Law, by Schultz & Associates, LLC, we have helped families throughout New Jersey with their divorce and family law legal problems. So if you’re preparing a divorce proceeding in New Jersey we encourage you to call us at 201-880-9770 or inquire online for a confidential initial consultation.

Once we have a more thorough understanding of your situation we’ll be able to initiate the important first steps towards protecting your rights.

Carrie S. Schultz, Esq. – author

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