Can Text Messages be Used in California Divorce Court?

How many text messages have you and your spouse sent one another over the course of your marriage? While text messaging is still a relatively new means of communication, it has also become one of the most common forms of communication, and spouses routinely text one another about matters ranging from mundane day-to-day scheduling to financial concerns and disputes that carry over from in-person arguments.

So, if you are preparing to go through a divorce, can you use your text message log to your advantage? What if your spouse has been having an affair, or simply talking to his or her friends about matters that are relevant to your impending divorce? Can you introduce these communications in the California divorce court as well?

Text Messages as Evidence in a California Divorce

As far back as 2012, text messages were a very common form of evidence obtained from smartphones during divorce proceedings, surpassing phone numbers, phone calls, emails, app usage, and GPS histories. Given the continued prevalence of text messaging as a primary means of communication, text messages continue to be a primary form of evidence in divorce proceedings heading into 2020.

However, when it comes to presenting text messages as evidence in divorce court, not all messages are treated equally; and, as a result, divorcing spouses must be careful to avoid making assumptions about what they can use to their advantage during the divorce process.

Text Messages Between Spouses

We’ll start with the simplest and most-common issue: text messages between spouses. As a general rule, if you have text messages from your spouse, you can use these as evidence during your divorce. Examples of reasons why text messages between spouses can be relevant to divorce proceedings include (but are not limited to):

To prove admissions of having an affair, intentionally wasting community assets, attempting to hide assets, or engaging in other behavior that may negatively impact your spouse’s legal rights during your divorce;
To demonstrate that your spouse has chosen work, social engagements or personal pursuits over taking responsibility for his or her share of child rearing responsibilities; and,
To raise questions about the truth of statements your spouse makes during the divorce process, either by contradicting them directly or demonstrating that your spouse has had a recent propensity for misrepresenting information.

Of course, the relevance of any text messages to your divorce will be highly dependent on the contents of your spouse’s messages and their relevance within the context of your unique family and financial circumstances.

Additionally, it is important to keep in mind that your spouse has an equal right to produce your text messages as well. While choosing not to bring your spouse’s text messages into the picture may not prevent him or her from trying to use your text messages against you, if you bring up your spouse’s text messages, you can be almost certain that he or she will bring up yours as well. While this is likely to be unavoidable to an extent, you can mitigate this risk by ensuring that you do not send any more texts that might have unfavorable consequences for your divorce.

Text Messages Between Your Spouse and Third Parties

If you have reason to believe that your spouse has sent messages to a third party that is relevant to your divorce, you may be able to obtain copies of these messages through the formal discovery process. However, as a general rule, spouses should not try to access text messages by logging into their spouses’ phones or using other forensic or “snooping” methods. Before doing anything that could harm your standing in your divorce, you should discuss your legal options with an experienced San Diego divorce attorney.

Request an Appointment with San Diego Divorce Attorney Richard M. Renkin

If you would like more information about using your spouse’s text messages during your divorce, please call 619-299-7100 or contact us online to request an appointment with San Diego divorce attorney Richard M. Renkin.