The role of e-mail, telephone calls, chat, voicemail, and texts in divorce proceedings

Most people use e-mail and smartphones on a daily basis. Communications via phone, text, and e-mail can be used to provide information about a party’s behavior during a divorce or custody case.

Can a smartphone be used as evidence?

According to a recent survey of the American Academy of Matrimonial Lawyers (AAML), 97% of members have seen a dramatic increase in obtaining evidence for divorce cases from smartphones and other electronic devices during the past three years. Almost 99% of AAML members indicate there has been an increased use of text messages as evidence in divorce cases.

Some type of information gathered on a smartphone may be used in court. If you think that you have photos, text messages, e-mails, or other recordings that may be useful in your case, you should talk to your attorney about what information can be used to help your case.

Precautions for using digital communications during a divorce

Be cautious about using Facebook Messenger, Google Chat, Twitter, or Facebook private messages to discuss the other party or issues relating to a divorce or custody case. Although these messages may not be visible to the general public, they are conversations that can be requested by the other attorney in a divorce or custody case. Don’t assume that these conversations are private or that the conversations cannot be retrieved if you delete them.

Precautions for recording or videotaping someone

Be cautious about using an electronic device to record phone calls or a person’s actions without permission. Different states have different rules about whether or not it is legal to record a person without that person’s knowledge. If you are considering recording someone’s activities or recording phone calls, you should consult with an attorney to determine what recordings you can legally make in your state.

What if I think I’m being recorded?

If you believe that you are being recorded by the opposing party, talk to your lawyer about your concerns and about what steps you can take to protect yourself. States often have different rules about when it is legal to record another person inside of your home and when it is legal to record another person in public.

Be careful with confidential emails

Be careful not to “reply all” if your attorney copies you on e-mail correspondence with individuals outside of your attorney’s law firm. If you are involved in a contested custody or divorce case, it is a good idea to ask your attorney what steps you should take to make sure that your electronic and telephone communications with your attorney remain confidential.