The Law Offices of Cheryl Lynn Hepfer

How Divorce Attorneys Use Digital Data to Make a Case against Cheating Spouses

Are text messages the digital equivalent of "lipstick on the collar"?

This is the question lately being asked of many divorce attorneys. Earlier this month, I was interviewed on ABC‘s "Nightline" to discuss this disturbing new trend. The segment, entitled Scandal by Text, explored the ways in which many individuals, celebrity and non-celebrity alike, create a trail of electronic evidence with text messages on their cell phones – never thinking that these private messages may be used against them.

Much controversy has been made surrounding the cases of Senator John Ensign, Detroit mayor Kwame Kilpatrick, and most recently, sports superstar Tiger Woods - all public figures whose private text messages to their paramours have recently been made public. Backing up this trend, a recent study by the American Academy of Matrimonial Lawyers says 90% of the nation‘s top divorce attorneys report an increase in the use of electronic data as evidence. And attorneys anticipate the number of cases to increase as younger cell phone users, who are more likely to text than talk, get married.

Are text messages considered private? Of course. Off-limits in the court? Maybe not.

It‘s no secret that consumers have an intensely personal connection to their cell phones. Modern technology allows us to use our cell phones for just about any reason: we can check our email, reserve a table at a nice restaurant, or proudly showcase family photos. This personal connection, however, provides a false sense of safety to the user. Intimate communication sent from the device – phone calls and text messages – do not always remain intimate, a fact many people seem to forget.

As I emphasized in the interview, often people seeking a divorce are willing to forgive a spouse of committing adultery or being unfaithful, but are not willing to forgive the misrepresentation and lies that covered up the betrayal. Many cheating spouses will go to extreme lengths to deceive their partner – but are not always adept at covering their tracks.

So why don‘t cheating spouses cover their tracks by deleting incriminating text messages? For many, a text message serves as a memento of the relationship. And for some it may also serve as a form of insurance since it can serve to verify a relationship.

It might surprise you to know that text messages can remain on both the sender and receiver‘s phones for anywhere from days to a few weeks – even if they have been deleted. Many phone companies keep records of text messages for specific periods of time. Verizon reports saving text messages for up to 10 days, while AT&T saves messages for only 48 hours.

In addition, shared phone plans offer the spouse an easy opportunity to check for potential cases of infidelity. John Verdi of the Electronic Privacy Information Center told "Nightline" that the primary account holder has access to each member‘s records, which include both phone calls and text messages. "It‘s really like the electronic equivalent of digging through the jacket pocket," said Verdi.

Courts across the nation are just beginning to deal with these cases. Some federal courts have accepted programs and procedures to obtain the information during the discovery process for trial. However, many judges interpret the statutes in different ways, and there is no case law as current precedent at the moment for text messaging.

Experts say you shouldn‘t write anything in a text message that you wouldn‘t want your mother to read. But as recent cases show, you may want to abstain altogether – a string of flirty messages could be all the evidence an attorney needs to make a justifiable case for infidelity.