In the digital age, electronic communications are second nature for most of us. Our smartphones are always within arm’s reach, if not in our hands. Statistics show that 98% of American adults now have a mobile phone, 81% text regularly, and adults under 45 send and receive an average of more than 85 texts daily. People open most texts, and about 95% are read and replied to in 5 minutes or less.
Texting and other forms of electronic communication, including email, DMs, IMs, WhatsApp messages, etc., are a quick and convenient way to be in touch.
But they can also be risky when you’re in the midst of a divorce.
Authenticated electronic communications—specifically those between you and your spouse and third parties—are admissible as evidence in California family court. Especially in a high-conflict divorce, you can be sure your spouse’s attorney will leave no stone unturned in examining your texts and other electronic messages.
California is a no-fault divorce state, meaning neither party must prove wrongdoing to obtain a divorce. However, your texts and emails can be used as evidence of behaviors that could impact the court’s decision about such issues as division of assets, spousal support, and child custody.
Clear, open, positive communication is vital to keeping the grueling divorce process running as smoothly as possible and ensuring your texts don’t spell trouble in court.
Here are nine expert tips for texting mindfully—and avoiding the pitfalls of electronic communication during divorce:
Don’t vent. As quick and convenient as texting is, it can make it all too easy to fire off a few choice words and give someone a piece of your mind without considering the consequences. So, first and foremost, do not ever send threats, insults, obscenity, profanity, negative, inflammatory, or derogatory language, personal attacks, harassment, or intimidation over text, email, or social media messages. Avoid accusations, the blame game, and name-calling. Avoid sweeping generalizations and hyperbolic statements like “you always…” and “you never…” Skip the rant no matter how much you feel like reading your ex the riot act. You’ll only make yourself sound unhinged—and it can come back to haunt you.
Take your (emotional) temperature. Check your frame of mind before you send that text or email. If you’re heated up emotionally, angry, frustrated, and reactive, you’re more likely to say something you’ll regret. Take a pause and put down the smartphone. Take a few deep breaths and maybe a walk outside. Give yourself time to calm down and clear your head before you send anything.
Be brief and respectful. Polite, businesslike communication will go a long way toward keeping things civil. Keep it simple, cordial, neutral, non-emotional.
Keep it basic. Don’t try to have meaningful conversations over text messages. Want to confirm a drop-off time, or who is picking up the kids from soccer practice? It’s usually okay to text that bit of business. But save serious discussions and sensitive topics for a larger conversation. In particular, don’t comment on legal matters or your actual divorce proceedings in texts—finances, assets, custody, support, negotiations, legal strategy, and so forth require structured conversation and legal assistance. Discussing them informally over text could be self-incriminating or result in disputes.
Be mindful of tone. It’s notoriously hard to read the tone in an email or text, even more so when you’re both raw and ready to take offense. Avoid sarcasm and snarkiness.
Avoid giving orders. Phrases like “you must” and “you need to” can be perceived as demanding. Treat your ex as an equal partner in the conversation and the task by framing things as a friendly request. Would it be possible? Or Could you give me a hand with this task?
Take the high road—not the bait. You do not have to respond just because you get a text. If your ex provokes you, crosses boundaries or tries to pick a fight—de-escalate. Don’t engage, don’t argue back.
Before you send it, review it. Read your message back to yourself and honestly ask, “Would I want the judge to read this?”
Know that what’s out in cyberspace is there forever. Don’t assume that deleting a message—or even a whole account—will eliminate messages. There are many ways to preserve them, and complete records can be subpoenaed.
A couple of important DO’s:
- DO apply these same rules to any communications with third parties about your ex, divorce process, etc.
- DO save electronic communications documenting your interactions with your ex and demonstrating your ex’s behavior. Save messages, take screenshots, and create a digital paper trail.
The skilled and caring family law attorneys at SFLG can help you navigate the complexities of your dissolution process and advise on the most effective communication strategies.
By Debra Schoenberg
