Can Texts Be Used in Divorce Litigation?

Some of my mediation clients asked me what types of communications would have been admitted in divorce proceedings if they had litigated.  Where judges formerly preferred only copies of emails, more recently pretty much everything can be viewed and used in divorce litigation.  Emails, Facebook, Instagram, Messenger, WhatsApp and text messages can all be forms of evidence.

Really anything that passes through your phone could be considered mobile evidence and used to support a parenting time provision, legal-decision making (custody), obtain an order of protection or even support criminal charges.  However, for such evidence to be admissible in court, you must prove the communication is relevant and authentic.

Screen shots are the easiest way to document text or other digital communications.  There are also apps and programs that can download chats and texts onto your computer as a pdf file.  There is also at least one fee-based service that will do it all for you.

Given all the potentially hurtful and damaging communication out there, do you really want to involve yourself (and your kids) in that level of exposure in court?  That’s one of the many benefits of using private mediation.  If you both are willing to work with a divorce mediator to move forward, you don’t have to rely on any type of “evidence,” digital or not.  You both can have respectful, meaningful discussions to work out your own personal agreements with respect to your finances and family.  And use your phones for more positive activities!