Although Illinois is a no fault divorce state, text message evidence may be used in a divorce proceeding if it is relevant to child custody or financial issues. Furthermore, a threat of harm against a party through test messaging or unrelenting harassment via text messaging may be used as evidence in filing no a contact order.
Although electronically stored information such as text messages may be abundant and obtained through discovery, admissibility of electronic evidence turns on a number of evidentiary factors such as:
Relevancy – Text message evidence must be relevant to the proceeding. Does it prove or disprove one of the legal elements of a case? For example, a text message from a spouse something along the lines of “you’ll never see you children again!” in a contested child custody battle may prove relevant when determining parenting time and parenting responsibility, making it clear that parental alienation – someone who actively tries to keep his to her children from having a relationship with the other parent – will have consequences.
Similarly, if texts reveal how much your spouse and the other man or woman enjoyed clandestine get-a-ways to Paris or expressions of gratitude for an expensive gift, the texts may be evidence of dissipated marital assets pertinent to the division of marital property and debt in a divorce.
Authenticity – Authentication of text messages communications can prove to be one of the greatest challenges of admissibility. There must be sufficient facts to persuade the court that the evidence was created by the person who is alleged to have created it. Does the phone number identify from whom the text messages are received? At what telephone number were the messages received? Can the persons connected to the telephone numbers be identified? Can the time and date of sending and receiving the text messages be identified and just where was the sender when his or her messages were allegedly sent? These questions and more that must be answered to authenticate text message communications.
Hearsay – Much like kids playing the telephone game, something repeated again and again takes on a life of its own; the original message can be lost in translation. It follows that information received from other people, “he- said- she- said”, that cannot be adequately substantiated is Hearsay, a close cousin to Rumor.
Probative Value is evidence which is sufficiently useful to prove something in a case and therefore does not needlessly prejudice the minds of the court. One example of probative value puts it this way: In a murder trial, the fact that a defendant argued with his neighbor once upon a time (unrelated to the crime) has no probative value because it provides no relevant information to the case at hand (unless the dispute was with the victim of the crime) and allowing jurors to hear about an unrelated fight might prejudice the court against a now seemingly aggressive defendant. In the same vein, when considering a divorce case, providing text messages of your spouse exchanging sweet nothings in an extra marital affair may have no probative value to prove they are less worthy of custody of the children and may stir prejudicial feeling against the cheating party.
Text messages can be incriminating or potentially harmful to your divorce case, or the other way around, depending on who said what. Keeping all text communication between you and your soon to be former spouse to a bare minimum and limiting what you say in your text messages to friends and family members is good practice if you are considering divorce. Whether text messages are admissible in family court is a matter to discuss with an experienced family law attorney.
If you have questions regarding divorce and the admissibility of text messages, social media or other electronic messages, contact the Libertyville family law offices of Ronald L. Bell & Associates for immediate assistance at 847-495-6000.