Can Text Messages Be Used as Proof of Adultery?

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Proving adultery as grounds for divorce can be beneficial for the divorce litigant. To succeed, the spouse must have the proof to present to the court that adultery has occurred.

Text messages can be a treasure trove of information when it comes to the thoughts and actions of a spouse. However, you might wonder if you can use the text messages in court. Are text messages proof of adultery for divorce?

Are Text Messages Usable As Proof of Adultery?

Yes. Text messages can be used as proof of adultery. South Carolina evidence rules allow admission of statements by an opposing spouse, including texts, even though the statements are made outside of court. (S.C. Rules of Evidence 801(d)(2)).

A text may also be admissible as a statement against interest. See Bunch v. Cobb, 273 S.C. 445 (1979) (admission against the interest of a party opponent is admissible).

A party wishing to admit texts as proof of adultery must obtain and admit the messages in a way that complies with procedural requirements.

Admitting Text Messages as Proof of Adultery

Text messages can – and have – been used to prove adultery in South Carolina divorce cases. Usually, they’re one piece of evidence as part of a larger presentation of the actions and circumstances surrounding the adultery.

Here are a few examples from South Carolina case law:

Thornton v. Thornton, 428 S.C. 460 (Ct. App. 2019). – Husband filed for divorce on the grounds of adultery. Husband presented evidence of text messages between wife and another person. He also presented evidence that the wife consistently came home late at night as well as testimony of a private investigator who saw the wife kissing the other person. On appeal, the court affirmed the divorce on the grounds of adultery.

Mick-Skaggs v. Skaggs, 411 S.C. 94 (Ct. App. 2014). – The wife filed for divorce on the grounds of the husband’s adultery. The husband admitted text messages as proof, along with witness testimony of the wife exiting a bar with another man, and the man entering the wife’s home. The appeals court affirmed the lower court’s decision to bar alimony to the wife on the grounds of adultery.

How to present a text message to admit in a divorce proceeding

Text messages must be admitted in compliance with the rules of legal procedure and evidence. Rule 901 requires authentication of a piece of evidence as a condition of its admissibility. For text messages, this can be done in many ways, including testimony of a witness with knowledge or evidence of the author’s screen name, common patterns in speech, known phone numbers and other evidence to show the person was the author of the text message. (See S.C. Rules of Evidence Rule 901 – Requirement of Authentication or Identification).

Note: If you’re not represented by an attorney, you’re held to the same evidentiary standards and requirements as though you had one. If you don’t understand the rules or how to present the evidence correctly, the text messages may not be admitted. Our family law attorneys represent individuals needing aggressive representation in divorce proceedings. Contact us today for your confidential consultation.

Is it worth proving adultery in a South Carolina divorce case?

Proving adultery can put a spouse in a better position in divorce litigation. By proving adultery, the spouse may receive a final judgment of divorce without the one-year waiting period that is imposed in no-fault cases. S.C. Code § 20-3-10(1). Alimony may not be awarded to a spouse who commits adultery. (S.C. Code § 20-3-130). The behavior of the spouse may also be considered when determining property awards. (S.C. Code § 20-7-472).

What do I have to show to prove adultery in a South Carolina divorce case?

Since adultery usually takes place in private, most of the time, it’s circumstantial evidence that proves it. To prove adultery in a South Carolina divorce case, a party must show the offending spouse had the opportunity and inclination to commit adultery. It’s enough to show the time and place as well as circumstances of adultery. Loftis v. Loftis, 284 S.C. 216, 218, (Ct. App. 1985).

Are there certain acts that constitute adultery?

South Carolina does not have an exact list of what behaviors or sexual acts constitute adultery. Sexual intercourse is not required. However, just placing a spouse in proximity of a third party is insufficient. Gorecki v. Gorecki, 387 S.C. 626, 633, (Ct. App. 2010).

Who has the burden of proof for adultery in a South Carolina divorce case?

The spouse accusing the other of adultery has the burden of proof.

What is the burden of proof for adultery in a South Carolina divorce case?

Adultery must be proven by a preponderance of the evidence. The proof must be clear and positive. Brown v. Brown, 215 S.C. 502, 512-13 (1949).

Getting Text Messages to Prove Adultery

If you’re thinking about seeing what you can find rummaging through your spouse’s phone or email – don’t! Looking through a spouse’s phone may run afoul of privacy laws (Stored Communications Act (SCA), 18 U.S.C. §§ 2701–12; S.C. Code § 17-30-20).

Evidence gathered improperly is unlikely to be admissible, and it can place you in a bad light in court. There are very fine lines in the law in what is allowed and what is not when it comes to looking through your spouse’s digital footprint. You should proceed with extreme caution and under the guidance of an experienced family law attorney.

However, that does not mean that it’s impossible to get ahold of texts for use in divorce court. You can get them through discovery requests for documents, through third parties, or sometimes by issuing subpoenas to service providers. Action to preserve evidence often needs to be taken quickly. Our experienced lawyers at Bannister, Wyatt & Stalvey can take the necessary steps to get text messages as well as create a plan to supplement them with other evidence that paints a complete picture of the adultery and circumstances of the divorce.

Attorneys for Presenting Text Messages in Divorce Court

Do you need to present text messages as proof of adultery in divorce court? We are experienced family law attorneys. Contact us to learn more about your case and how our attorneys can help you get justice.

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