Legal Ease by Shane Givens
June 15, 2011

Can my ex view my texts?

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In my divorce practice, one of the first questions I have been asking new clients is “Do you do or your spouse do a lot of texting?” After that I ask if they have a Facebook account.

The reason these questions are important in a divorce case is that both locally and nationally it seems people who do a lot of texting and Facebooking have lost their minds. More specifically, most people will type things through texting and Facebook messaging that they would never dream about putting on paper. It is sometimes astonishing what I see on people's Facebook account or text logs that their spouse has collected in anticipation of a divorce. Affairs, secrets, and sometimes unspeakable acts are usually discussed in great, sometimes graphic detail between a cheating spouse and their lover.

I am not sure if people think that their communications via Facebook and/or text are confidential, or if people just don't care, but all of this information is discoverable in a civil or criminal trial. Admittedly, it is sometimes hard to get these official documents directly from Facebook or a cellular service provider; however, most times a subpoena is not necessary. Usually, the divorce client has already printed volumes of pages of Facebook and text correspondences.

When the discovery phase of a divorce action starts and I send this information to the cheating spouse's lawyer, he or she will sometimes tell me that there is no way I can get the documents introduced into evidence. Usually, however, I can.

All evidence in a civil action has to be legally "authenticated." For documents such as printed Facebook or text records, this usually means the records have to be officially certified by either Facebook or the cellular provider as authentic. Another way to get these documents authenticated, however, is to simply ask the cheating spouse about them. Most of the time, the spouse will tell the truth about the document and “Presto!” the damaging evidence is admitted into the court record.

Why not lie? Well, in most situations it is far more damaging for the cheating spouse to lie. Facebook records, for example, are all over the Internet for anyone with the proper password or friendship relationship to see. Texts have the cell phone information at the bottom of each text to show where and from whom the texts came.

If you have damaging texts of Facebook documents like this, you will want to make sure and let you lawyer know about them. If you are sending or receiving these items, you may want to watch out. These communications may not be as secret as you think -- and they can always potentially be used against you in a divorce action. 

This column is intended for general information purposes only. The answers to most legal problems rely on specific facts of a particular situation; therefore, it is very important to see a lawyer when these situations arise. 

Please e-mail questions for future columns to givenslaw@tds.net.