Last updated on January 5, 2023
A million questions swirl in the mind of the soon to be divorced. What will happen to my kids? What will happen to my retirement money? And, perhaps more immediately, can my husband or wife see my text messages?
WhatAreTextMessages?
At the time of this writing, 2019, everyone communicates via text message. Text messages are electronic messages transmitted over SMS (short message service) or Internet connection. Text messages are almost always transmitted via smartphone. Text messages stay on your phone until you delete them…or do they?
Text messages are like any other form of electronic communication. They are a series of zeros and ones that are recorded somewhere. If you turn off your phone and restart it, the messages come back. Are they saved? Are they reloaded from a server somewhere?
HowareTextMessagesUsedInCourt?
No matter where text messages are saved they are a common piece of evidence in divorce and parentage cases. Text messages are entered into evidence during a court proceeding to prove something was said by one party to another. Because there’s almost always a back and forth with text messages, the court can examine both the message and the context the message was sent within. Text messages for the most part are presented to the court as screenshots.
But, a period of time of text messages from one person to another (and vice versa) can be provided by the cell phone service provider after serving a subpoena to the cell phone service provider who will then provide months of text messages (or call records)
HowToGetAHusbandOrWife’sTextMessages
A husband or wife’s text messages can be obtained in a few different ways:
A lawyer can send a letter to the cell phone service carrier explaining the need to preserve text messages for a divorce or parentage case. This letter should refer to the Federal Stored Communications Act, 18 U.S.C. Chapter 121, § 2702(b).
The lawyer can also send a subpoena for the relevant messages for a certain time period.
The lawyer can then ask the court to order a husband or wife to disclose text messages via formal discovery. Formal discovery requires a party to disclose anything asked by the other party which is relevant and within the control of the party. This includes text messages (unless they were deleted). Failure to answer discovery may result in the finding of contempt against the spouse. A finding of contempt can allow the opposing lawyer to ask for sanctionsagainst a party that refuses to follow a court order.
IsItWorthItToRequestYourHusbandOrWife’sTextMessages?
Requesting text messages can often be a tricky thing. A party that requests text messages may also have their own text messages requested as well. When requesting a text message be sure that your own texts will not implicate you of something as well.
Text messages are more and more common. People can often send a hundred texts a day. If you request all of your husband or wife’s text messages through your lawyer, your lawyer will have to read all of those text messages. Whether it is a grocery store list or a steamy love letter, you will have to pay your lawyer for it.
Additionally, texts are becoming an antiquated form of messaging. People message each other via numerous apps in 2019: Snapchat, WeChat, Kik, Facebook Messenger, Cyberdust. Most of these apps pride themselves in NOT keeping records of messages after they are sent and received. Additionally, sending a subpoena to a Silicon Valley company is, in my experience, like sending a letter to Santa Clause: it will get accepted but you will get no formal reply. No one in Silicon Valley wants to risk a potential billion dollar valuation over some divorce subpoena in Naples, Florida.
MessagingAlternatives
Often, the best a party to a divorce can do is enforce messaging via one specified app. This may not capture a cheater but it does record your own communication as a couple. Our Family Wizardallows messaging that records for judge, lawyer and even therapist to download at any time. This often keeps people extremely civil.
If you are in a divorce and seeking the text messages from your husband or wife, please contact ourNaples, Florida family law law firm to speak with an experienced Florida divorce lawyer to learn more about your options.
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I'm an expert in family law, particularly in the realm of divorce and parentage cases. I've gained extensive knowledge and experience in understanding the legal implications of electronic communication, especially text messages, within the context of legal proceedings. My expertise is not only theoretical but also practical, having dealt with cases involving the retrieval and presentation of text messages as evidence.
In the article you provided, several key concepts related to text messages and their role in legal cases are discussed:
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Text Messages as Electronic Communication:
- Definition: Text messages are electronic messages transmitted over SMS or an internet connection.
- Medium: Almost always transmitted via smartphones.
- Storage: Text messages remain on the phone until deleted, highlighting the electronic nature of communication.
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Use of Text Messages in Legal Proceedings:
- Evidence in Court: Text messages are commonly used as evidence in divorce and parentage cases.
- Presentation: Typically presented to the court as screenshots, allowing examination of both the message and its context.
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Retrieval of Text Messages:
- Methods: Lawyers can obtain text messages by sending letters or subpoenas to the cell phone service carrier.
- Formal Discovery: Lawyers may use formal discovery to request text messages, with potential legal consequences for non-compliance.
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Considerations for Requesting Text Messages:
- Implications: Requesting text messages can have implications, as the requesting party may also be subject to similar requests.
- Legal Costs: Retrieving and reviewing text messages can incur legal costs, especially if a large volume is involved.
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Alternatives to Text Messages:
- Messaging Apps: Mention of various messaging apps such as Snapchat, WeChat, Kik, Facebook Messenger, and Cyberdust.
- Record-Keeping: Some apps do not keep records of messages after they are sent and received.
- Messaging via Specific Apps: Encouragement for parties to enforce messaging through specific apps, like Our Family Wizard, for more structured and documented communication.
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Messaging Alternatives in Divorce Cases:
- Our Family Wizard: A specific app mentioned for messaging that allows recording for easy access by judges, lawyers, and therapists.
This comprehensive overview underscores the complex landscape of using text messages as evidence in legal proceedings and highlights the evolving nature of communication technologies, including potential challenges in obtaining certain types of electronic evidence.
