Q. I'm about to file for divorce. How do I handle communicating with my spouse/significant other while this case is pending?
A. That's a great question. The best thing to remember is to always think before you speak!
Keep in mind that whatever you say really can be used against you in court and there are ears everywhere, some in places you don't expect. Speaking can include things other than what you say face to face. Here are some things to watch out for:
- Phone calls – Texas is a one-party consent state. That means it is legal to record a phone conversation as long as one party gives permission. If your spouse calls you, he or she can record you and you have to assume you are being recorded. If you admit to having community property that your spouse “will never see again” or tell your spouse he or she will get custody of the children “over my dead body,” you have just provided evidence admissible in court. You don’t want to hear, “Your honor, I move to admit into evidence Exhibit 1 which is the audio recording of opposing spouse’s admissions. I will now play it for the Court to hear.”
- Emails – Emails are also admissible in court. Contents of emails may provide evidence of adultery or abuse. In child custody cases, they may show instances of neglect or emotional abuse. They may also provide a paper trail of one spouse trying to hide money from the other.
- Text messages – Text messages can be more damaging than people realize. An unusual amount of calls to and from a strange number can show up on the family plan which indicates adultery. One spouse could send a text containing a threat or an obvious lie, then try to delete it, but the other spouse may have saved it and made copies. If you think you can delete all of your texts before you file, remember, your spouse already has them. Always picture what you say in a text or email blown up as an exhibit in the middle of the courtroom.
- Social media – Facebook, Twitter, Instagram....Nothing is private on social media, and anything you post may work against you. Pictures of you platonically kissing someone not your spouse could be argued as infidelity, which could affect your case for child custoday. Pictures showing you drinking and partying could paint you as a bad parent, affecting your visitation time or depriving you of custody completely. Remember, you may have blocked your spouse from every account you have, but other people can access it and pass it along to your spouse. So before you share anything, imagine your spouse's attorney looking over one shoulder and the judge looking over the other.
In the end, your attorney and your discretion are your best protection. Avoid confronting your spouse without your attorney, because he or she is fighting to protect you and will attempt to keep you from saying anything that will hurt your case. Otherwise, silence is golden. And when you are posting on social media, ask yourself – “Are the few minutes of satisfaction I'll get by posting this worth the risk in the long run?” Finally, if you have any doubts about what to do, ASK YOUR ATTORNEY!