One of the newest technological advances of the 21st century is the ability to communicate quickly and effectively with one another via text.

Text messaging is commonplace and often is preferred to talking directly on the phone. However, sending a text message creates a permanent record of your words and can potentially be used for an adverse purpose.

Text messages are rapidly becoming a very common evidentiary product in domestic relations cases. Often, these messages are entered into evidence during a court proceeding to prove certain words were said by one party to another. Text messages can be presented as screenshots or messages can often can be produced by serving a subpoena upon the cell phone provider who may subsequently be compelled to release that information.

Obtaining a spouse’s text messages can ordinarily be done in two ways. One way might be to send a letter to the cell phone carrier, through an attorney, explaining the need to preserve text messages for a divorce case. This letter should refer to legal standards, including the Federal Stored Communications Act, 18 U.S.C. Chapter 121, § 2702(b). The attorney can subsequently send a subpoena for the relevant messages for a certain time period. The attorney can also ask the court to order your spouse to disclose text messages, and failure to cooperate may result in the finding of contempt against the spouse.  A finding of contempt can lead to various sanctions against the party who does not follow a court order.

Another way might be to issue discovery, a legal request for certain documents in Illinois divorces and Illinois parentage actions that are typically issued during the course of litigation. One method of discovery might be a “Notice to Produce” pursuant to Illinois Supreme Court Rule 214 sent by an attorney requesting production of certain text messages. A portion of Illinois Supreme Court Rule 214 states that “Any party may by written request direct any other party to produce for inspection, copying, reproduction photographing, testing or sampling specified documents, including electronically stored information as defined under Rule 201 (b)(4), objects or tangible things, or to permit access to real estate for the purpose of making surface or subsurface inspections or surveys or photographs, or tests or taking samples, or to disclose information calculated to lead to the discovery of the whereabouts of any of these items, whenever the nature, contents, or condition of such documents, objects, tangible things, or real estate is relevant to the subject matter of the action. The request shall specify a reasonable time, which shall not be less than 28 days except by agreement or by order of court, and the place and manner of making the inspection and performing the related acts.”

In my experience, requesting text messages can often be a double-edged sword.  The person that requests text messages can also have their own text messages requested.  So take great care to insure that your text messages do not subsequently implicate you in some kind of misbehavior.

Additionally, consider how many texts a person sends out each day.  It will take hours and hours of attorney time to review all of those messages.

Texts are no longer the only messaging a cell phone can use.  There are hundreds of messaging apps that are specifically designed to have the messages be permanently erased.  Requesting text data will not show you messages sent on Facebook messenger, Whatsapp or Kik.

Because texts, emails and other messengers are deletable, courts will often order the parties to communicate via the messenging app Our Family Wizard.  Our Family Wizard allows message records that the attorneys, judge or therapist can download at any time.  Hopefully, this keeps everyone on their best behavior.

One caveat exists when using a phone to collect information on your spouse.  In Illinois, never ever record someone orally without their permission.  Unauthorized recordings are a crime in Illinois.

If you are contemplating requesting text messages from your spouse or his/her cell phone provider, or have other questions related to this issue for your Illinois divorce or parentage case, please contact our Chicago, Illinois law firm to speak with an experienced Illinois divorce and parentage attorney about your legal issue.