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Can My Cell Phone be Used in a Divorce?

Where Strategy Meets Skill

Our best advice – Don’t. Put down the phone, walk away, breath, and think. And the reason why is simple – yes, your posts and texts CAN be brought up in your divorce case. The question becomes murkier as to whether or not they are admissible.

Texts – and for that matter Facebook and twitter – have a unique feature, and that is the difficulty in authenticating the actual author. It is a well-known joke of Facebook and twitter, in fact, that the unattended phone is fair game for hijacking and posting any number of untoward things on a “friend’s” account, so there is some plausible deniability in claiming ownership for posts or texts when you may not have necessarily had control of your phone at all times, particularly a phone that has an automated posting or sign in feature where a password is not required.

The upshot – just about anyone can pick up your phone. But in reality, how many people beyond the age of teen do just that? Most adults have control over the phone and unless it is stolen or otherwise routinely out of his or her control, then the plausibility and credibility of not claiming ownership for a Facebook post or tweet is uncertain at best.

Texts are less easy to disclaim for two reasons – one, they are often real time. Which means that the person getting them will more frequently than not be engaged in an ongoing conversation – one that they can easily save to their phone as a “page gif” (in other words, they can take a photograph of their open text screen, showing the “bubbles” of conversation back and forth and YOUR name and phone number at the top, identifying you as the source on the other end). This means that the text authorship is easier to validate, and the text contents easier to bring up in court.

What if no one had the wherewithal to make a record of the texts, however? There, you have both good and bad news, depending upon your perspective. Typically, the content of texts will not be discoverable by civil subpoena from a phone company, and the reason why data management is – there is so much information out there that most phone companies will not have verbatim text records of all your conversations. They will, however, have records of phone numbers contacted, and in that fashion it can be surmised what level of contact is being had between two phones, the owners of whom are easily identifiable.

This, in turn, means if the issue is one of discovering your texts to a third party – such as a girlfriend, boyfriend, or other person – then the person seeking to discover the information will have to have either that person’s or your own cooperation in providing the texts. There is limited information as yet on whether screen grabs of texts are able to be subpoenaed, but it is sure to evolve into something that is certainly foreseeable. So the best practice is to be better safe than sorry.

The moral of the story is simple – if you are getting a divorce and you cannot resist temptation, then close your social media accounts and stop texting. Leave no “paper trail” of your comments, and best practice yet, avoid even discussing the divorce if at all possible, as anyone you speak to is potentially a witness in your divorce.

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