Photo of Professionals at Weinberg, Kaplan & Smith, P.A.
Photo of Professionals at Weinberg, Kaplan & Smith, P.A.
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Texting and divorce

by | Aug 27, 2018 | Firm News

In recent years, the divorce rate in New Jersey has decreased substantially. In fact, the state actually has the third lowest divorce rate in the country as of 2017. 

Although the divorce rate has gone down, one aspect of it that has increased is the prevalence of text messages serving as evidence. Many attorneys have begun to subpoena text messages because they serve as evidence to influence factors such as alimony and child support. 

How do text messages come into play?

One of the most common reasons why text messages come up in court is to prove infidelity. However, since New Jersey is a no-fault divorce state, proving adultery is not necessary to file for divorce. With that in mind, text messages can still serve as evidence in New Jersey divorces for other matters. For example, one spouse may have sent the other a message that the court could construe as threatening. This could impact a child custody agreement if one side fears the other spouse could be abusive. 

Are text messages admissible in court?

In the event the two spouses share a family phone account, then both parties have a right to see the others’ texts. In some cases, the attorney may attempt to file a subpoena to gain access to the messages. 

To get a subpoena, the lawyer will need to send a letter to the cellphone company, which should retain copies of all messages sent. Next, the lawyer needs to prepare the subpoena itself in a request to find the desired texts. The attorney will then file a motion with the divorce court, known as an ex parte motion, to get the other party to sign paperwork granting permission to access the texts. Finally, the attorney needs to actually serve the subpoena.

There are alternatives to subpoenas, and ultimately, the lawyer will go with whatever route is most likely to produce the desired results.