With texting, email, and Facebook Messenger rising in popularity as methods of communication in relationships, so is their use as divorce evidence. As divorce attorneys, we used to look for evidence in files, notebooks, ledgers, memos and photo albums. Now we have to also look at emails, text messages, Facebook, LinkedIn, Snapchat, Twitter, Instagram, YouTube, and even Pinterest for what divorce evidence that is called Electronically Stored Information (ESI).
Thousands of courts across the country have recognized that parties have an obligation to preserve and produce electronically stored information. When the prospect of divorce litigation is present, parties are required to preserve documents that may be relevant to the issues to be raised. Failure to do so may result in the court finding of spoliation of evidence. Spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding). This duty to preserve evidence is triggered when there is probable, likely or reasonably anticipated litigation.
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Divorce Evidence Includes Electronically Stored Information (ESI)
Today most aspects of our lives are documented and captured somewhere as electronically stored information – from online financial records and health information to various communication through emails, text messages, and social media posts. If you or your spouse has filed for divorce, know that you must preserve and if asked, produce all of your electronically stored information including things like social posts or Facebook Messenger. This means many forms of electronically stored information (ESI) will be subject to review in a divorce and could be admitted into court as evidence.
Before divorce evidence is admissible in court, it must be authenticated, or shown that it is what you are claiming it to be. For electronically stored information such as text messages or Facebook messages, there are distinctive characteristics for each piece of evidence that make it authentic.
The distinctive characteristics of a text message include the context of the message (as it relates to the litigation), who owns the phone where the text message lived, the identification of the sender, time, date and often times responses back to that sender.
To get a text message entered into evidence, you must establish the following:
- You regularly communicate via text with that person
- Acknowledge receipt of a text message on a specific date and time
- Ask how that person’s name and phone number are stored in your device
- Ask if the photo of the text (or text itself if the phone is available) was received on that date and time
- Establish the relevancy of the text message
Your Texts, Emails, and Facebook Posts Can (and May) Be Used Against You
Text messaging and other electronic communication like social media has become the main communication tool and often leads to evidence that can prove harassment, abuse or undermine credibility. Consult a lawyer who will help you determine if text messages you have sent or received will be helpful to your case and how it may or may not influence the court.
At Anderson & Boback, we’re passionate about solving complex family law issues for our clients and their families throughout Chicago and the greater Chicagoland area. Contact us today for a confidential consultation when you have questions or concerns about divorce and the various types of communication that is admissible as divorce evidence.