When it comes to what evidence can be used during a divorce case, text messages are fair game. However, text messages may be irrelevant to the proceedings, depending on the reason for wanting to use them as evidence.
Text messages are usually wanted to prove infidelity. Unfortunately for the victims of infidelity, only a handful of states allow infidelity to actually have any impact on a divorce.
No Fault Divorce
The majority of states subscribe to the "no fault" divorce principle. This means that a court does not care whether one person did something that changed the relationship or caused the divorce. All the court looks to is the desires of the parties to no longer be married. Additionally, if only one spouse wants a divorce, a court will allow the proceedings to continue over the objection of the spouse that does not want to divorce.
As such, using text message evidence to prove infidelity is more often than not irrelevant as an overwhelming majority of divorces are "no fault" divorces.
Obtaining Text Messages
Text messages are not confidential by virtue of simply being text messages. However, under federal law, consent of a phone's owner or user is required to obtain records of the text messages directly from the phone company.
Hacking, or otherwise illegitimately gaining access to another person's text messages can lead to criminal charges and other civil penalties or liability. However, the person who received the text can voluntary provide it to either party, and the party that sent the text could be required to turn it over themselves.
During the discovery process, a party may request that text messages and other sensitive information be turned over. In states that allow for "fault" based divorces, a court is more likely to approve of this sort of discovery request if the purpose is to prove infidelity.
In "no-fault" divorce states, unless there is some suspicion that the text messages contain information about hidden, or wasted, marital assets, a judge is less likely to approve of the discovery request to force a party to turn the messages over.
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