According to The National Law Journal in an article written by Tresa Baldas, divorce lawyers have found a new smoking gun to wave around in court: text messages.

Infidelity, bad parenting or threats — you name the issue in marital disputes, family law attorneys say, and the evidence can be found in text messages sent over hand-held gadgets.

The unfaithful, in particular, are paying a high price for their salacious messages. “In the sixties, we had private investigators bursting into hotel rooms to catch cheating spouses,” said Paul Talbert of New York’s Chemtob Moss Forman & Talbert. “Now it’s simply as easy as taking a BlackBerry or phone off the dresser.”

Talbert is both relying on texts to prove marital troubles and defending those who get busted over their careless words. For example, he recently represented a woman whose suspicious husband picked up her BlackBerry while she was in the shower and discovered messages that showed that she was having an affair with a co-worker.

The result? “Well, it produced a quick settlement,” said Talbert, who offered some advice for the soon-to-be divorced. “Change your password if you’re going through a divorce … and don’t use your new girlfriend as your password.”

California is a no-fault state in divorces as many of you are aware, so private investigators are never used to prove infidelity.  While cheating brings an end to many relationships, it is not grounds for divorce or for even getting more out of a settlement from the other spouse here in California.

Text messages also proved embarrassing for Nevada Gov. Jim Gibbons, whose estranged wife has alleged in court documents that Gibbons had extramarital affairs with two women, including one to whom he allegedly sent 860 text messages on a state cell phone. Gibbons publicly apologized for sending the texts — which he claimed were business-related — and reimbursed the state $130. His divorce is not final yet.

Text messages came up in the high-profile divorce trial of multimillionaire George David and Swedish countess Marie Douglas-David, but this time the texts weren’t about infidelity. Instead, the wife’s lawyer accused the husband in court of sending his wife a text message on her birthday because he didn’t want “to speak with her.” Douglas-David wants $100 million, plus $130,000 a month in alimony, from David, who says she’s entitled to just $43 million under a postnuptial agreement.

Text messages are playing into custody battles, too. Lenorae Atter of Jacksonville, Fla.’s Wood, Atter & Wolf is handling a case in which text messages are being used to show that the children are having a hard time living with their mother. The kids, she said, are sending texts to their father about problems with their mother.

It is tough to get a judge to listen to a child but maybe texts will soon come to play in California custody matters.  I personally have not seen this used in any custody cases in Sonoma County, but it would not surprise me if it has been.

Atter has also used text messages to help women obtain restraining orders against abusive husbands, who send threatening messages to their wives. She said that, while e-mails are pretty standard evidence now in family law matters, “text messages are slowly but surely coming into the fold.”

I have seen text messages and e-mails used to prove threats against both men and women in the Court here, which contributed to a restraining order being issued on the threatened party’s behalf.

In another article in The Connecticut Law Tribune, written by Christian Nolan, the text threat issue is explored and discussed more in depth.  To see that article, click here.

The lesson here is if you don’t want anything you say to be used against you, don’t send texts or e-mails to anyone that can be construed as threatening or abusive.

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