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Can Text Messages Be Used as Evidence in NJ Divorce Court?

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We live in a digital era where so much of what we say and do is recorded electronically. Unfortunately for most people, but very fortunately for lawyers, many of our electronic communications can come into play in the courtroom. Below, our seasoned Englewood divorce attorneys explain how text messages may come into play in a New Jersey divorce.

Phone Records Can be Obtained During Divorce

Legal proceedings go through what is known as the “discovery” process. During discovery, each party to a case can request evidence relevant to the matter. The parties can request evidence from one another, including by submitting requests for documents, asking for answers to specific questions, and conducting depositions of witnesses. Parties can also request evidence from non-parties.

When seeking evidence from non-parties, attorneys can request the court to issue a subpoena, which compels a person or entity (such as a telecommunications company) to provide certain evidence relevant to the case. So long as the request is appropriately tailored to specific issues relevant to the case, the court will likely permit the request. A party could, therefore, submit a request to a telecommunications company for text messages, call logs, emails, and other information about a person (for example, the other spouse) for a given period or periods, so long as the information sought might be relevant to the case.

Parties can also introduce evidence already in their possession, such as text messages on their own phones, so long as the validity of the evidence can be verified.

How Can Texts be Used as Evidence?

Phone records, including text messages, can be subpoenaed from a telecom company or otherwise introduced into evidence whenever they would be relevant to a matter at issue in the case. In a divorce proceeding, the question would be: What is the party seeking to use these text messages trying to learn or prove, and is that relevant to the divorce? There are many situations under which text messages would be useful evidence.

If, for example, one spouse might be hiding assets, then the other party could seek to introduce text messages as evidence of hidden accounts and other assets. Texts between the party and an accountant, a financial manager, a financial institution, or even with a friend or family member that refers to assets or accounts not already a part of the divorce may be requested and/or used as evidence. Texts between a party and their lawyer would likely be excluded from evidence under attorney-client privilege.

Texts may also come into play in custody disputes. One party may use text message evidence to show that their co-parent abuses drugs or alcohol when the children are around, or that they have unsavory characters staying at the home. Evidence that the child might be exposed to a dangerous or unhealthy situation should they live with a given parent can have a significant impact on custody rights.

Texts might also be used to show evidence of an extramarital affair if the affair is relevant to the case. If one party seeks to show that the other party has been wasting or diluting marital assets on an affair, for example, text messages with an extramarital romantic partner about hotel stays, plane tickets, or lavish gifts could serve as helpful evidence. A party who may owe spousal support might show texts between the other party and their romantic partner to prove “cohabitation” in order to reduce or eliminate their alimony burden.

Seasoned Advice and Effective Representation for Your New Jersey Divorce Case

If you’re considering divorce in New Jersey or dealing with child support, child custody, property division, or other family law issues, contact the Englewood family law attorneys Herbert & Weiss at 201-440-6300.

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