Can I Use Text Messages as Evidence in a Divorce Case?
Divorce cases often involve disputes over property, custody, support, and other deeply personal matters. In many cases, text messages become a key piece of evidence. But are they admissible in a New Hampshire divorce? The short answer is yes—text messages can be used in court, but there are important legal considerations to keep in mind.
Are Text Messages Legally Admissible?
Like emails, social media posts, and voicemails, text messages can provide insight into a spouse’s behavior, communication patterns, or even financial activity. However, just because a text message exists doesn’t automatically mean it will be considered by the court. Under New Hampshire rules, family courts are not bound by the formal rules of evidence. This can allow records, including text messages, to be introduced without fewer requirements than, for example, if they were to be used at a jury trial. However, this does not mean that a family court judge will allow any text message to be used as evidence for any reason. The judge still has discretion in deciding whether the messages are relevant and authentic.
Key Factors for Admissibility
For text messages to be used as evidence, they must meet two main criteria:
- Authenticity – The messages must be proven to be real and unaltered. Courts will require some form of verification, such as testimony from someone who received or sent the message. Screenshots alone might not be enough if the other party disputes their validity. In complicated or contested cases, a party may even need to use metadata or a digital expert to validate the messages.
- Relevance – The content of the messages must be directly related to the divorce case. A judge won’t consider unrelated conversations or messages that have no bearing on custody, asset division, or other disputed issues.
When Can Text Messages Be Used?
Text messages may be useful in several areas of a divorce case, including:
- Child Custody Disputes – If a parent sends messages that are threatening, neglectful, or show a lack of responsibility, those texts can be used to argue for or against custody arrangements.
- Evidence of Adultery – While New Hampshire allows for both fault and no-fault divorces, texts proving infidelity could impact alimony and division of assets if one spouse seeks a fault-based divorce.
- Financial Dishonesty – If a spouse claims to have no income but texts suggest otherwise (e.g., discussions about hidden assets or side businesses), the court may take that into account when determining support or property division.
- Harassment or Abuse – Threatening or emotionally abusive messages can play a role in protective orders and parenting arrangements. Courts take this type of evidence seriously when determining what is in the best interest of the child.
How to Preserve and Present Text Messages
If you believe text messages could support your case, preserving them properly is critical. Here’s how:
- Take Clear Screenshots – Ensure they include timestamps and the sender’s contact information.
- Backup – A phone may die or lose messages. There are many apps available that allow text messages to be backed up to a computer hard drive or the cloud.
- Print Copies – Digital evidence can be lost or deleted, so having a physical backup is useful.
- Request Phone Records – Your attorney may be able to subpoena records from the phone carrier if needed.
- Avoid Editing or Altering Messages – Any evidence that appears to be manipulated could be challenged and thrown out.
Separate the Wheat from the Chaff
Some parties in court try to submit hundreds of pages of text messages to make their case. While there may be incriminating evidence buried in those messages, this strategy can backfire. Most New Hampshire family court judges work hard and take their job seriously, but they handle many cases, and their time is limited. It is not the judge’s responsibility to sift through mountains of evidence to find what supports your argument. Instead, it is often better to curate the strongest messages—focusing on what truly matters while leaving out marginal or repetitive texts. In many cases, judges will allow (and even appreciate) a summary table that highlights the key messages supporting your case. You can then introduce a larger volume of messages as verification that the summary is accurate. This approach keeps things clear, concise, and persuasive.
First Do No Harm
Some parties in a divorce introduce text messages thinking they strengthen their case—only to realize too late that some (or many) actually undermine their position. This happens when people get so wrapped up in their own perspective that they lose objectivity. That’s why it’s always best to have your attorney review the messages first to ensure they do more helping than hurting your case.
On the other hand, if you know you’ve sent text messages you regret, and it’s likely your spouse will use them against you, a smart strategy may be to preemptively introduce them yourself. This allows you to provide context, explain them, or otherwise take the sting out before they can be used as a weapon. Handling bad evidence is as much art as it is science—and it requires careful strategizing with your lawyer.
Can Illegally Obtained Messages Be Used?
New Hampshire is a two-party consent state when it comes to wiretapping laws. This means that recording a private conversation without the other person’s consent may be illegal. However, text messages are typically different—they are considered written communications, not live conversations. That said, if you obtained text messages by hacking into your spouse’s phone, email, or accounts without permission, they might not be admissible and could even lead to legal trouble for you.
Text messages can be valuable evidence in a New Hampshire divorce, but they must be handled carefully. If you think messages could support your case, consult an attorney before presenting them in court. A skilled lawyer can help ensure that your evidence is properly authenticated and used effectively.
If you’re facing a divorce and have concerns about digital evidence, legal guidance can make all the difference. Contact our team at Cohen and Winters for help with any questions you might have.