Text Messaging and Divorce

Having everything available digitally makes some parts of the divorce process more difficult and makes other parts easier.  Most of the time, it just makes things more time consuming, as more and more clients bring in pages upon pages of text messages and pictures that they’ve saved in the hopes that they will prove “important” in their case.Having everything available digitally makes some parts of the divorce process more difficult and makes other parts easier.

Most of the time, it just makes things more time consuming, as more and more clients bring in pages upon pages of text messages and pictures that they’ve saved in the hopes that they will prove “important” in their case. I can understand how it happens.  If we’re trying to prove cruelty, every single text where he said something cruel—or even hinted at being cruel—would be relevant, right?  And so every single text would be saved, meticulously printed, organized, and provided to the attorney.  But the attorney—and the judge, for that matter—can’t go through millions of pages of evidence.  Even if the attorney could, the judge wouldn’t allow enough time in court to be able to get too many exhibits entered.  (Judges don’t have a ton of patience with that sort of thing.) I’m not saying that text messages automatically aren’t good evidence.  I am saying, though, that you need to keep an open mind, consult with your attorney, and ultimately make decisions about what type of case to put forward.

It can be hard to make those decisions, but, at the end of the day, the evidence you provide in court is important, and you don’t ever want to waste valuable time.

So, if you’re planning on introducing evidence—specifically, text messages or photos from your phone—what are 3 things you MUST know before your case goes to trial?

Read on, my friend.  (And keep in mind, too, that you should always consult with your attorney before making any big case decisions; this is general advice only, and your case may be different.)

1. Understand how divorce works.

All the evidence in the world won’t do any good if you’re negotiating a separation agreement.  Basically, in Virginia, you can get divorced in one of two ways: either in court, or by agreement between the parties.  If your divorce is negotiated, you end up with a signed separation agreement that the two of you (and your attorneys, if you’re represented by counsel) have negotiated.  A signed separation agreement divides all the assets and liabilities of the parties—without the input of the judge.In a litigated divorce, on the other hand, the judge determines how all the assets and liabilities will be divided.  In a negotiated divorce, because you reach an agreement between the two of you, there’s no need for physical evidence.

You don’t have to prove anything to anyone; it’s all only a matter of what you can agree to.In court, though, you might need evidence—because you’re trying to prove to the judge that your fault based grounds exist and/or that you deserve a particular distribution of the assets.  If you’re hoping to negotiate an agreement (and many people are, because typically this is the cheapest and quickest way to get a divorce), you may want to gather evidence, just in case.  But you’ll probably also want to keep in mind that it’s pretty unlikely that you’ll use it, unless things unexpectedly go south.

2. Pick your best 3 pieces of evidence.

Like I said already, the judge isn’t going to spend eons going through your evidence.  Even though I’m sure all the different pieces you’ve selected bolster your point (whatever that point may be), that doesn’t mean that we have time to introduce it all in court.  As a general rule, it’s a good idea to pick your three best pieces of evidence.  Keep in mind, though, that even three might be pushing it.  (On a good day, you may be able to introduce more, but it’s pretty unlikely.)Really, though, 3 is a good number.

Whatever you’re trying to prove, 3 texts or pictures might help, but anything above and beyond might cause the judge’s eyes to glaze over—not exactly an ideal position to find yourself in.

3. Understand the limitations of your type of evidence.

Keep in mind that you may need more than a couple of pictures or some text messages to prove your position.  Though this kind of evidence is often helpful, it’s often not enough.With adultery cases, for example, you’ll need a corroborating witness to prove that your husband slept around.  It’s not enough to show a text that he sent to his girlfriend, or to show a picture of the two of them out to dinner together.

Though that’s helpful, it’s not enough.  The law requires that you also have a corroborating witness (usually, someone like a private investigator or the girlfriend herself) to testify about the relationship and what they’ve witnessed.  Furthermore, it’s easy to fabricate text message evidence.  I’m no computer whiz, but when you print them up, you can copy and paste, and even edit text messages.  Besides that, you can input whatever name you want at the top of a text message conversation.  You could text your girlfriend, change her name to “hubby” in your cell phone, and continue to have a nasty conversation that you then submit as evidence.Some judges are a little more skeptical of evidence introduced by text message than others, so it’s a risk; basically, we risk that we bring it in, and the judge deems that it’s essentially worthless.Better evidence would be something that we can link concretely to him—a credit card statement, for example, that shows he wined and dined his girlfriend one weekend.  Text messages, though, can be suspect.

Pictures, too, can be weak as evidence, because they can fail to tell the whole story.  Since adultery is about sex, it’s not enough to show a picture of your husband and his paramour kissing, or her sitting on his lap.  And, frankly, it’s unlikely that you’d have a picture of them actually in the act of having sex (thank goodness, right?).

All that to say that, depending on the type of evidence you hope to admit in court, you may run into limitations specific to that particular kind of evidence.If you have pictures or text messages that you believe will be valuable in your case, you probably want to talk to an attorney before you make any specific case-related decisions.  Keeping in mind the following 3 key pointers, though, you can begin to come up with a case strategy that a judge will truly consider.  For more information about how to use text messages or pictures in your divorce or custody case, or to schedule a one on one consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.

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