In the golden age of smartphones, almost everyone has information and communication at their fingertips. You use your smartphone for calling, texting and surfing the internet, but can your smartphone also be a weapon against you during divorce proceedings?
If your texts are relevant to some factor in your marriage dissolution, an attorney can subpoena your text messages. In some cases, he won’t need to, and in other cases, he won’t be able to. Wyoming is a no-fault divorce state, so state residents will not have to prove infidelity or some other marriage fault to legally break up.
Most texts relevant to divorce proceedings fall under two categories: spousal texts and third-party texts.
Obviously, these are text messages that you send or receive from your soon-to-be ex (STBE). The phone automatically record these messages, so generally, your STBE spouse would not have to inform you that they are documenting the conversation, even if they intend to use the messages during a court case. A concept called marriage privilege does protect a spouse from revealing something that a spouse told them in confidence, but either partner can revoke that privilege. In summary, any texts that you send to your soon-to-be ex-spouse are fair game during your legal proceedings.
Texts sent between yourself and a third party can be trickier to subpoena, and generally you will have more rights to protect them. Many states are no-fault divorce states that don’t require a fault like infidelity to give the divorce. In a no-fault case, there is no legal need to provide texts, although in some states, a lawyer will request them anyway. An at-fault state may subpoena text messages from a third party as part of an effort to prove infidelity.
Your text messages may be relevant to other portions of the legal divorce proceedings. If your spouse has reason to believe your texts contain evidence of hidden assets, lawbreaking or potential harm to the children, a lawyer can request that the messages become part of the legal record. If property division or child custody is part of the divorce, you can expect that your texts may be part of a valid subpoena. However, if the texts are not part of a valid legal issue, you won’t have to turn over messages between yourself and a third party.