In a contested divorce, the courts can admit digital evidence if they are relevant or authenticated. Text messages are one of the common examples that couples use during litigation.
Since these count as valid proof, you might be wondering whether you can delete them. Contrary to popular belief, simply removing a heated exchange or sensitive conversation does not provide a clean slate.
Why a delete button does not fully erase texts
Text messages leave a permanent digital footprint. Deleting them does not remove their entire existence. Messages often live on in cloud backups, on your spouse’s device or through detailed forensic recovery.
How courts gain access to text messages
A judge may gain access to your messages through:
- Voluntary disclosure: You or your spouse willingly presents the messages in court.
- Discovery phase: Attorneys can legally request copies of communications.
- Subpoenas: Courts can issue a subpoena to parties or third-party providers to produce relevant communications.
Parties have a duty to preserve evidence when litigation is reasonably foreseeable. If you intentionally delete messages to hide information, a judge may impose sanctions for the spoliation of evidence.
Managing your texts with caution
The urge to delete messages to find peace of mind is understandable. However, this can do you more harm than good. To avoid issues during divorce, refrain from deleting texts with your spouse or about them.
Before you press anything on your phone, it would be wise to seek advice from an experienced family law attorney. They can walk you through the technical nuances of Virginia’s evidence laws.