A million questions swirl in the mind of the soon to be divorced. What will happen to my kids? What will happen to my retirement money? And, perhaps more immediately, can my husband or wife see my text messages? 

What Are Text Messages?

At the time of this writing, 2019, everyone communicates via text message. Text messages are electronic messages transmitted over SMS (short message service) or Internet connection. Text messages are almost always transmitted via smartphone. Text messages stay on your phone until you delete them…or do they?

Text messages are like any other form of electronic communication. They are a series of zeros and ones that are recorded somewhere. If you turn off your phone and restart it, the messages come back. Are they saved? Are they reloaded from a server somewhere?

How are Text Messages Used In Court?

No matter where text messages are saved they are a common piece of evidence in divorce and parentage cases. Text messages are entered into evidence during a court proceeding to prove something was said by one party to another. Because there’s almost always a back and forth with text messages, the court can examine both the message and the context the message was sent within. Text messages for the most part are presented to the court as screenshots.

But, a period of time of text messages from one person to another (and vice versa) can be provided by the cell phone service provider after serving a subpoena to the cell phone service provider who will then provide months of text messages (or call records)

How To Get A Husband Or Wife’s Text Messages

A husband or wife’s text messages can be be obtained in a few different ways:

A lawyer can send a letter to the cell phone service carrier explaining the need to preserve text messages for a divorce or parentage case. This letter should refer to the Federal Stored Communications Act, 18 U.S.C. Chapter 121, § 2702(b).

The lawyer can also send a subpoena for the relevant messages for a certain time period.

The lawyer can then ask the court to order a husband or wife to disclose text messages via formal discovery. Formal discovery requires a party to disclose anything asked by the other party which is relevant and within the control of the party. This includes text messages (unless they were deleted). Failure to answer discovery may result in the finding of contempt against the spouse.  A finding of contempt can allow the opposing lawyer to ask for sanctions against a party that refuses to follow a court order.

Is It Worth It To Request Your Husband Or Wife’s Text Messages?

Requesting text messages can often be a tricky thing.  A party that requests text messages may also have their own text messages requested as well.  When requesting text message be sure that your own texts will not implicate you of something as well.

Text messages are more and more common. People can often send a hundred texts a day. If you request all of your husband or wife’s text messages through your lawyer, your lawyer will have to read all of those text messages. Whether it is a grocery store list or a steamy love letter, you will have to pay your lawyer for it.

Additionally, texts are becoming an antiquated form of messaging. People message each other via numerous apps in 2019: Snapchat, WeChat, Kik, Facebook Messenger, Cyberdust. Most of these apps pride themselves in NOT keeping records of messages after they are sent and received. Additionally, sending a subpoena to a Silicon Valley company is, in my experience, like sending a letter to Santa Clause: it will get accepted but you will get no formal reply. No one in Silicon Valley wants to risk a potential billion dollar valuation over some divorce subpoena in Naples, Florida.

Messaging Alternatives

Often, the best a party to a divorce can do is enforce messaging via one specified app. This may not capture a cheater but it does record your own communication as a couple.  Our Family Wizard allows messaging that records for judge, lawyer and even therapist to download at any time.  This often keeps people extremely civil.

If you are in a divorce and seeking the text messages from your husband or wife, please contact our Naples, Florida family law law firm to speak with an experienced Florida divorce lawyer to learn more about your options.