Can Text Messages Be Used in a Divorce?

Text Messages Can Be Used as Evidence in Certain Circumstances

Whether or not text messages can be used in a divorce in Illinois depends on the situation. Illinois is a no-fault divorce state, so you do not have to show that your spouse did anything wrong in order to file for a divorce. You can simply cite irreconcilable differences. So, a text that shows your spouse had an affair probably will not be of much help because you don’t have to prove adultery or another reason to divorce.

However, there are situations where text messages could affect a divorce settlement, so anyone considering or involved in divorce proceedings should be incredibly careful about what they send in texts or post on social media or public websites. While divorce courts in Illinois can’t use fault to make decisions about how assets will be divided, there are times when evidence provided in text messages may affect financial issues such as the division of marital assets, as well as child custody and visitation, now known as “parenting time” and “allocation of parental responsibilities.”

For example, text messages could be used to try to show that a spouse has anger issues or is unstable, unreliable, or has other problems that may not be in a child’s best interests, and this may affect parenting time. If you have been threatened or harassed through text messages, this may help you get a no-contact order against a spouse you are afraid of. Or, if text messages show that your spouse drained a bank account to pay for their affair, a judge might give you a larger share of assets to make up for this loss.

In any case, if you have text messages from your divorcing spouse that may be used in your favor or if you are afraid that you may have written texts that can be used against you, you should share this information with a skilled divorce lawyer. Every case is different, so it is best to have an attorney in Illinois family law carefully review your situation to determine whether text messages may be beneficial or harmful to your interests and what you can do to preserve them as evidence.

Are Text Messages Admissible in Court in Illinois?

Whether text messages and other electronic evidence are admissible in Illinois courts depends on several factors that include:

Whether the Text Message Is Relevant

To be relevant, the text must provide evidence to prove or disprove one of the legal elements of a case. For example, if your spouse sends a text message threatening to keep your children from seeing you, this may be relevant in a contested child custody battle, as it shows intent to keep you from having a relationship with your children. Since the courts view having a relationship with both parents as being in the child’s best interest, this threat may affect parenting time allocation.

In allocating marital property and debt, if texts show that marital assets were spent on paying for an affair, a judge might give you a larger share of assets to make up for this loss.

Whether the Text Message Is Authentic

To be admissible, there must be sufficient facts to persuade the court that the text was created and sent by the person who is alleged to have created it. Copies of text messages should:

• Have dates and times clearly shown on them.
• Connect the phone number the messages came from to your spouse or another person who sent them and to whom they were sent.

If you have text messages that could be used in your favor, do not delete them. Be sure to print, screenshot, or photograph the entire string and show them to your attorney, who can help authenticate text message communications.

Whether the Information Is Hearsay

Hearsay is information received from other people, such as in a string of texts or through secondhand statements, which cannot be adequately substantiated, rather than directly from the person in question. This is easily denied and leads to “he-said-she-said” situations that cannot be proven and thus will not be admissible as evidence. For example, text messages from a spouse’s friend inferring that your spouse is having an extramarital affair could be construed as hearsay and not admissible.

Whether the Texts Have Probative Value

Probative value is evidence that can be used to prove something relevant in the divorce case without needlessly creating prejudicial feelings. For example, texts sent by your spouse to a lover that show the existence of an affair are not useful or relevant to proving your spouse is not capable of having sufficient parenting time with the children, but they may stir up prejudicial feelings against that spouse.

What Should You Not Text During a Divorce?

Going through a marriage break-up is stressful, and emotions, including anger, can often run high. However, since anything you put in writing could be admitted as evidence, you should think twice before clicking send on text messages that might be used against you.

Just as you may be able to use your spouse’s texts as evidence, your soon-to-be ex-spouse may also use your texts against you in a divorce. Here are some tips to help ensure that your texts do not come back to haunt you:

• If you are considering filing for divorce or are already in the process, keep texting your spouse to a minimum. Also, keep text messages as polite as possible.
• Try not to text about problems with your spouse or details of the divorce to family members and friends, especially to others who may be sympathetic to your spouse.
• Do not send angry texts to your spouse or about your spouse. Avoid calling names, alluding to getting back at them, or saying anything you think could possibly be used against you.

Can Social Media Posts Be Used in a Divorce?

As with text messages, social media posts may also show up in divorce cases. If you know of Facebook posts, Twitter tweets, or posts on other social media platforms that may be beneficial, screenshot them, if you can, to be saved as evidence. And again, as with text messages, try to refrain from posting about your divorce or issues surrounding it on social media. Like text messages and social media posts, emails may also be used in divorce proceedings. The same rules apply to them — be careful what you put in emails. Also, keep copies of emails you receive that could help your case.

It is important to point out that you should only get copies of these things legally. For example, if you have been directly sent emails from your spouse that could help you in a divorce, keep copies of those. But do not attempt to hack into your spouse’s private email account to get copies of emails that could hurt their interests. These would most likely not be admissible and could get you in trouble.

Get Help from Our Experienced Divorce Attorneys

If you are getting angry or other negative messages from your spouse, be sure to save them and show them to your attorney when you start divorce proceedings. If you are getting messages from your spouse’s friends or family members that you think might be helpful in your divorce case, save those, too. In general, it is a good idea to keep all text communication between you and your divorcing spouse, as well as to friends and family members, to a bare minimum if you are considering divorce.

Whether text messages and other evidence are admissible in divorce proceedings can be a complex issue and one that is best reviewed by your attorney. At Wolfe & Stec, our compassionate and experienced Illinois family law attorneys are here to help with text messages and all other divorce issues. We will listen to your concerns and goals and address your individual needs to produce the best solution possible.

Once we review your situation, we can advise you more closely about how texts might help or hurt your case. Whatever the case may be, our skilled attorneys will work hard to make sure marital property is divided fairly and equitably and your interests are represented in child custody issues and other disputes.

Our attorneys bring an in-depth understanding of the Illinois Marriage and Dissolution of Marriage Act and Illinois family law courts to our clients. We have successfully upheld the interests of thousands of individuals going through the marriage dissolution process. We can help you, too.

Call our experienced divorce lawyers at (630) 305-0222 today for a free consultation.