First off, as I’ve stated in previous articles, if you can avoid divorce, make every effort to do so. In many circumstances, the divorce process can be long, emotionally challenging, and arduous. There are times though where avoiding a divorce is not possible and going through the divorce process is the best way to proceed.
Preparation for a Divorce
Though many people do not like to think in such terms, if you absolutely know that a divorce is in the cards, you will do yourself a favor by planning for the things you will need for the divorce. Keep in mind that most divorces do not go to trial, even when the couple has contested issues that are left unresolved. In most cases the couple will start out at extreme odds with one another, negotiation between the lawyers for each party will ensue, and the parties will negotiate a settlement in the final hour before the pretrial hearing or trial begins.
You may rightfully wonder, then, why it would be necessary to worry about planning for the evidence you might need for trial if it is possible and even likely that your case will never go to trial. The answer lies in the fact that good evidence can keep you out of a trial by using it in the negotiation process to let the opposing side know that you may be able to harm their case.
Text Messages as Evidence in a Massachusetts Divorce
A process exists in Massachusetts with respect to the admission of evidence which helps attorneys and judges know exactly which evidence will be admitted in so that the judge can property consider it (divorce trials in Massachusetts do not go before a jury). Getting the best results in the evidence admission process takes some basic understanding of the process. Here, that process is explained as it applies to getting text messages into evidence.
Hurdle 1: Authentication
In Massachusetts evidence law, the proponent (or person seeking to have evidence admitted) must be able to demonstrate that the evidence is what the proponent claims it to be. Authentication, as applied to text messages, is achieved by demonstrating the author of the text message by “confirming circumstances” causing a “reasonable fact-finder to conclude that this evidence is what its proponent claims it to be” and that “neither expert testimony nor exclusive access is necessary to authenticate the source.” Commonwealth v. Purdy, 459 Mass. 442, 450 (2011)
The ruling in Purdy means that text messaging may be admitted by a judge in a divorce trial in Massachusetts provided the he or she finds the evidence is reasonably what it appears to be and that is true even if someone else has access to the computer or device from which the text message originated besides the author. Id.
The best way to show the judge in a Massachusetts divorce trial that the evidence is what you claim it is, would be to present a screenshot, photo, printed message which includes information that identifies that the message is sent by the author of the text, and either the testimony of the author at trial or an affidavit that the document is the true and accurate representation of the text message found on the phone or computer from which it was sent.
Try to include the timestamp that accompanies the text message and anything that identifies the author and sender of the text message, e.g., a phone number.
Hurdle 2: How to Copy Text Messages
Depending upon the platform that your phone uses, for example, Android or iPhone, there will be different procedures available to download texts to a computer. There are numerous apps that allow you to download text messages from your Android or IPhone cellphone onto a computer. Simply find the appropriate app and install it onto your phone.
If you have the presence of mind to screenshot your text messages immediately after they occur, and have the double blessing of being able to obtain the timestamps and sender information in the screenshot (a simple left swipe on iPhone for timestamps), the process of obtaining copies of text messages to include as evidence becomes much easier than having to install a 3rd part application.
Hurdle 3: Oops, I’ve Deleted the Text Message
You may be able recover text messages that have been deleted from you device if you download a 3rd party app for the phone or have been performing regular phone backups for the device. Although I am not a computer expert by any stretch of the imagination, I believe that if you are unable to recover deleted text messages by either of these methods you are probably out of luck.
The Benefits of Preplanning
Although planning ahead to save text messages and other bits of evidence may have you feeling that you are doing something wrong, please understand that I am not suggesting that you setup or trap your spouse. Setting up or trapping a spouse into having a conversation by baiting them may result in a conversation that shows them to be aggressive, abusive, or otherwise behaving badly. However, going to the extreme of socially engineering such a conversation is more likely to come across as unnatural and will be noticed by the judge. Remember that in a divorce, a Massachusetts judge has most likely been presented with many thousands of pieces of evidence over their career and will sense a stilted or contrived conversation.
On the other hand, a naturally occurring conversation between spouses might just be the evidence that you need to convince the opposition to recommend settlement or to persuade the judge of the reality of your situation. If you know that your spouse is behaving badly, and you know that divorce is unavoidable or inevitable, then planning ahead could be of great benefit to your case.
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