Many clients tell their Tomball divorce lawyer that they have text messages proving that their spouse is cheating. Indeed, adultery is probably the most common reason for divorce. But you must be able to prove it in court.
The issue is whether text messages represent admissible evidence, and to what extent they prove adultery.
How Texas Law Defines Adultery
For the everyday person, adultery takes many forms and may involve just a too close connection with another person of the opposite sex. However, in the case of a contested divorce on the grounds of adultery, you have to follow the letter of the law.
In legal terms, adultery is defined as voluntary sexual intercourse of a married person with another person who is not the spouse. If you want to use text messages as proof of adultery, they must indicate in clear terms the existence of a sexual relationship between your spouse and another person of either sex.
Challenges of Introducing Text Messages as Evidence
Text messages are written electronic messages which can be read on a mobile device. This makes it challenging for an attorney to find a way of introducing them as evidence.
There are different ways of presenting these messages in divorce court:
- Directly on the mobile phone, if it is introduced as physical evidence
- As screenshots (taking a photo of the phone screen using a special feature within the mobile device)
- As photos of the screen displaying the message, taken with a separate device
However, the judge may accept or reject such evidence at their sole discretion. This prerogative is strengthened by the various issues related to the validity of text messages as reliable evidence:
1. Obtaining the Messages by Invading Your Spouse’s Privacy
Unless one of the messages proving adultery was sent by mistake to your own phone, you will have to get access to your spouse’s phone in order to obtain their text messages. This is considered an invasion of privacy and may make the messages inadmissible as evidence.
2. Photos and Screenshots Have to Be Certified Copies
Any kind of digital information – text, photo, video or audio file – can be modified using various apps and software. The divorce court must be convinced that the screenshots or photos you submit are true certified copies of the original text message existing in the mobile phone memory.
3. The Identity of the Sender Cannot Be Determined with Accuracy
Many people use pay-as-you-go mobile phones (the so-called burner phones) in an attempt to hide their identity. In many cases, the spouse may invoke catcalling or an unsolicited message from an unknown party and deny having any knowledge of the sender.
In this situation, you will need an experienced Tomball divorce attorney to resort to expert witnesses and prove the true nature of the relationship between the sender of the messages and your spouse.
How Will Proof of Adultery Influence the Outcome of the Divorce
First of all, you must know that adultery is not illegal in Texas. However, during a divorce, the judge may decide to intervene in the standard way of splitting assets under the community marital property principle. You may receive a larger share of marital assets.
When it comes to child custody, adultery alone does not preclude someone from being deemed a fit parent. The court will focus on the best interests of the child and consider several factors, such as:
- The physical and emotional needs of the child
- The stability of the child’s residence
- The nature of the child’s relationship with each parent
- The child’s preference, if they are at least 12 years old
Schedule an Initial Appointment with a Skilled Tomball Divorce Lawyer!
Adultery is the ultimate betrayal in a marriage and it is understandable that you are in an emotional state. However, you will need the calm and professional approach of a skilled Tomball divorce lawyer to prove adultery and obtain a fair share of marital assets.
We will advise you on how to obtain evidence in a lawful manner, so that it is admissible in court, even in the case of text messages. We will also protect your best interests during the child custody battle, also putting your children’s wellbeing first.
Do not wait any longer! Call Bolton Law and schedule an initial appointment today: 281-942-7943!
