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Text messages present evidence issues in divorce court

A new evidentiary wrinkle is being added to the mix in divorce cases, and individuals considering or going through a divorce should be informed about how it can affect them. That new wrinkle is using texting and other forms of electronic communication as evidence in divorce proceedings.

According to the American Academy of Matrimonial Lawyers (AAML) more than 90 percent of leading divorce attorneys experienced an increase in cases using evidence taken from a smart phone in the past three years. This new development is similar to the prior trend of posts from Facebook pages being used as evidence.

Additionally, a past survey by the Pew Internet and American Life Project reported that 12 percent of adults said they had posted something online they later regretted. The director of the project says this is evidence that people are becoming more careless with sharing private information.

Previously, infidelity was often difficult to document. Today, however, text messages often provide incriminating proof. Further, young people tend to text more than talk on their phones, and, therefore, this trend is likely to continue.

Dangers of text messaging during a divorce

Compared to other forms of communication, text messaging is immediate. People use texts to vent to others and often send them without thinking. In contrast, a communication method such as email provides a window of time in which to rethink the wisdom of sending the message.

Text messaging is a documented record of a person's private thoughts, feelings and intentions that can come back to haunt them. People assume text messaging is safe because texts are difficult to print out. However, there are ways to print text messages, and they are also commonly witnessed by third parties looking over the sender's shoulders.

People also tend to forget that even if they erase a text message on their own phone, it may still exist on the recipient's phone. Even if both parties erase their messages, cell phone companies usually store them anywhere from a few days to a few weeks.

Other forms of documented communication

According to the AAML poll, text messaging is the most common form of divorce evidence taken from smart phones. Other popular forms of communication used as evidence include:

  • Emails
  • Internet search history
  • Phone numbers
  • Call histories
  • GPS histories

Lawyers are advising clients that anything put in writing can potentially be viewed by a judge. Avoiding posting on services such as Facebook during the divorce is generally good advice. Cases often turn uglier when documented evidence is displayed. For instance, reading text message evidence of infidelity is often more hurtful than simply hearing a rumor.

An individual going through a divorce can benefit from an experienced Massachusetts family law attorney. An attorney can assist with solving thorny evidentiary issues of any nature and can help clients pursue equitable settlements.

Linda Sternberg, Esquire
10 Tremont Street, Suite 200
Boston, MA 02108


Telephone: 617-454-4705
Fax: 617-722-8350


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