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October 25, 2021

Can a Divorce Attorney Subpoena Snapchat, Facebook, and Text Messages?

If you are considering getting divorced, or you are going through the process of getting divorced, you may be wondering whether your social media accounts and messages will remain private. Many people are surprised to learn that a divorce attorney can subpoena Snapchat, Facebook, and text messages. Divorce lawyers can subpoena information from any application where messages are stored or compelled to obtain this information.


Social Media Messages Can Be Used as Evidence

In criminal law and divorce law, messages and content on Facebook, Twitter, Snapchat, Instagram, and other social media applications can be used as evidence. These social media sites document users’ photos, locations, and messages. As many as one out of every three divorces cite at least one source from social media. The more active a person is on social media, the more potential evidence there will be that is pertinent to the divorce case.


Divorce Evidence is Considered Electronically Stored Information

Most aspects of our lives are documented and captured somewhere. This type of information is considered electronically stored information (ESI). Electronically stored information covers online Financial records to health information to various Communications through social media posts and messages. If you or your spouse has filed for divorce in Utah, you need to preserve and produce your electronically stored information when asked by the court. This means you may need to provide all of your social posts from Facebook Messenger, Twitter, Telegram, or any other messaging platforms or applications. This electronically stored information could be subject to review in a divorce and admitted to the court as evidence.


Admission of Text Messages in Divorce Cases

Before a Utah court admits the evidence, it will need to authenticate it or show that it is what you are claiming it to be. For electronically stored information such as Facebook or text messages, their distinctive characteristics make it authentic for each piece of evidence.  For example, the distinctive characteristics of a text message include the context of the text message as it relates to litigation. Other factors will consist of who owns the phone, where the text message came from, the sender’s identification, the time, the date, and the responses back to the sender. To get a message entered into evidence, an attorney needs to prove the following:

  • Show that the owner of the text message regularly communicates via text with that person
  • Show that the owner acknowledges receipt of a text message on a specific date and time
  • Ask if the photo of the text, or the text itself, was received on that date and time
  • Ask how the person’s phone number and name are stored on your device
  • Establish the relevance of the text message

Electronic communication through social media messaging and text messaging have become many people’s primary communication tools. Unfortunately, in a difficult divorce, one spouse may try to use evidence of text messaging, and social media messages to prove harassment, abuse, or just simply undermine that person’s ability as a parent for child custody purposes. If you are worried about your text messages and how they may make you look, it is helpful to ask an experienced divorce attorney to review your case as soon as possible. 


Carefully Consider What You Post on Social Media

It’s wise to carefully consider what you post on social media if you are considering divorce are going through a divorce. You should be vigilant and think that anything you post on social media could be used against you and your divorce case. Be careful who you befriend on social media, as it could be someone trying to gather evidence against you. Social media messages and posts could become evident that one or both spouses has or is still engaging in an affair. Your spouse may try to use social media evidence to show that you are an unfit parent or that you made abusive or derogatory statements about a spouse or even your children.


Voluntarily Providing Facebook History

Complying with the request of the opposing counsel to provide your Facebook history may satisfy the council’s demands. However, it can also be a binding agreement to keep providing Discovery until the trial is held. A party cannot agree to provide access initially and then choose to stop providing social media content that is requested later. When a spouse involved in a divorce case in Utah refuses to provide his or her social media history willingly, a divorce attorney can subpoena this information. The attorney can compel the release of social media information. Compelling the release means that the court, not the attorney, asks the party to provide the requested information.


Deleting Social Media Accounts During a Divorce

Sometimes one or both spouses will become nervous about having their social media accounts publicized in a divorce hearing. They may delete all of their social media accounts because they are afraid of doing something that will negatively affect them during the divorce. However, deleting a Snapchat or Facebook account during a divorce could constitute destroying evidence. Deleting a social media account is something that should only be done after carefully discussing the potential action with your divorce attorney.


Contact a Utah Divorce Attorney Today

At Read Law, we are passionate about representing clients in complex divorce issues throughout the greater Salt Lake City area. If you have concerns about what type of social media and messaging communications could become evidence in your divorce case, the best thing you can do is discuss your concerns with an experienced divorce attorney. We will help you determine if text messages you have sent or received will be helpful or hurtful to your case and how they could influence the court. We will also develop a strategy to protect you and your interest throughout the divorce process. Contact the Salt Lake City divorce attorneys at Read Law to schedule your initial consultation. 

If you are considering getting divorced, or you are going through the process of getting divorced, you may be wondering


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