Welcome back to the Oxendine Law podcast. Jared Oxendine and Christine Palmer, your host and co-host. Today we're talking about divorce and the digital trail. Y'all, we're talking about text. We're talking about emails. We're talking about all the digital evidence that accumulates in your case. Modern divorces involve thousands of digital interactions. Text messages, emails, even deleted messages can become evidence in court. Many people unintentionally actually damage their case through all this careless communication that goes on these days. And you know, Christine, I hate to kind of say this, actually kind of been fun to have this because I know when I first started practicing, we didn't have this. I mean, I remember when I was in high school and maybe even college, like it was the beeper. >> Yeah. >> I don't know if you'all remember the beeper days where you would actually get a page to your beeper and you'd actually have to go find a phone to call somebody. >> Uh we didn't have text message evidence. We didn't have >> I'm from the era of free nights and weekends. Yeah. >> And like you had like with 30 texts a month, otherwise they're going to charge you like a dollar. So yeah, we were very limited by time, money, and ability back then. >> That's right. And so judges and even attorneys were making decisions just based on who sounded more credible. Right. It'd be he said, she said, no evidence to really back it up in most cases. And so it was a judgment call. Well, now we have it all. >> Yeah. A little too much sometimes. >> That's right. And so courts will accept this evidence. That's what you need to know. Text message exchanges can be introduced into evidence. Email exchanges can be introduced into evidence. Screenshots, message logs, phone records, communication history, social media messages, photographs, videos. Am I missing something? >> All of it. All of it is even. I think sometimes people don't realize if you usually call and leave a voicemail, there's actually a text of that. They give a transcript of your voicemail. So you have it audio to hear the tone and the written transcription of exactly what was said. So yes, literally everything you say and do can and will be used against you in a court of law. >> That's right. So be careful what you say. And so we want to give you some examples of stuff that usually ends up being harmful in a case. And it's very easy to do. I'm guilty of sending messages I probably shouldn't send to my spouse, right? That if I got a divorce, it'd probably come back to bite me. But there's certain categories of written communication that sometimes can be more damning than others. So for example, let's say you are just constantly angry, right? I mean, you're constantly sending messages with an angry tone and a controlling tone, threats, abusive behavior. And if that's your spouse's theory of the case is that, you know, the reason for the divorce is because I was dealing with a controlling spouse and they were monitoring my every move and they're threatening me and telling me how awful I am and how they do everything right and I'm doing everything wrong. It was just angry messages all the time. Where are you? And I can't believe you would do that. You know, what were you thinking? That's all going to come back >> and that can hurt your case. >> My biggest advice, do not fall into the trap. How many times do you see somebody and you're like, "I can't believe you put this in writing." And then what do they say? Well, he said this. Okay, it doesn't matter what he said. It doesn't matter what she said. They're doing that on purpose. And they will tow the line. They'll get to the point of almost insulting or whatever. And then you feel the need to defend and either number one look crazy yourself or over explain like something that maybe wouldn't even be any proof that you did it but then when you basically confess to it and say well I did it only because or you don't understand it wasn't like that it was like this like the need to defend yourself will get you in so much trouble in so many situations and it's such a natural reaction that you don't even realize what you're doing. So guys, if you're getting those texts, emails, whatever, if they are not about your child, where to pick up, when to drop off, or something related to school or doctors, just don't respond. If it's accusations, I know you have a boyfriend. I know you were with a girl last night, just don't respond. Like, no response is always appropriate. Please, like, every client, hear me say that again. No response is appropriate unless it is something to do with your child's well-being. And if it's just something gossipy about your child, I can't believe you would tell him or her this or that. Don't even respond to that >> because sometimes your spouse or significant other might be trying to bait you. >> That's 100% >> getting you to say something. So that's great advice that Christine gave. Just don't respond at all because it usually is pretty obvious when they're trying to sto. And it's hard sometimes to not say something. >> Yeah. Oh yeah. And I will write it out for my client like this is a question for our lawyers. This is a topic for our lawyers. This is a conversation for our lawyers. You can always throw me under the bus. You can make me the bad guy. You can defer to me. Like it's like it's like the version of pleading the fifth when you're in a divorce case is talk to my lawyer. That's not rude. It's not insulting. It's the only way to successfully navigate out without saying something that might harm you or they might use against you later. And sometimes you think you're just saying everything just the right way. But of course, like you're not outside looking in. in the inside you think I'm just properly defending the accusation when in fact you may be saying something that could be more harmful. So that is your version of plead the fifth is this is a conversation for our lawyers. >> And here's one that I'm seeing a lot more of that in my experience at least judges hate and that's when you go on social media to badmouth the other parent. You don't see it as much in divorce cases sometimes, but like custody battles where it's either like a post- divorce modification action of custody or maybe it's two parents that have separated and no longer live together. Um either maybe married or not, it doesn't matter, but they are just bad mouthing, yeah, >> the other parent all over social media or giving information about kids over social media that would be inappropriate. If you really think about it, people, I mean, does it make any sense for the whole world to know your business? No. >> I mean, do you really want the world, even if what you're saying is true, even if you have a horrible husband or wife or a horrible ex-spouse or a horrible co-parent, do you really want the world to know your dirty laundry that's going on with your ex and your kids? No, you don't. And the judge is going to hold that against you and question your judgment as a parent if you're the one out trashing the other parent. Even if it's true, even if it's true, the judge does not want you airing your dirty laundry on social media. >> Well, yeah. That's the version of the two wrongs make a right. They're wrong in what they're doing. And they very likely are. But then you also create a wrong by putting it out on social media and by putting it into the universe where it can come back and your kids could find out or whatever. Like it's two wrongs making a right and one is not more wrong than the other. Like keep your side of the street clean. Just there's no need. There's absolutely no need to be posting it. Don't vague book. Don't I didn't I didn't post anything. I just shared an article. It was just I just found it interesting. No. Like everyone knows that you're implying that that's the situation you in or that's the situation that you you know your spouse is doing at the moment. So just I mean just stay off of it. You know what the best revenge is? Living well. If you really want to post something, post that workout in the gym. Hey, like getting it in today. Post that video of you playing on the playground with your kids and look how much fun we're having. Um, you know, if those if you just have to post something because you feel like, oh, people are think I'm withering away. I'm, you know, over here depressed. I want them to know I'm not okay. Well, then don't post the negatives about the other person. Post the positives about you. But please don't do the drinking in the bars and shots and the kind of stuff that can go over the top. I'm talking wholesome, good, fun, family, those things. Post away. If you just feel the need to let everybody know what's going on in your life, post those positives. >> You hit the nail on the head. You mentioned something I actually was not going to mention because I forgot about it, but I had a case where we were claiming the other side had a drinking problem. And lo and behold, we go on the social media account, Facebook, and they are partying it up, slinging back shots. I mean, every weekend out at a bar or a club just shooting drinks, shooting shots. Every background of every picture, there was a drink in it. You know, whether it was a pool party, whether it was at a restaurant, whether it was at a bar, clubs, I mean, this girl was doing it all. And she, if you look at the social media pictures, it's all broadcast. It's all there. So, that's a big no no. As far as bad mouthing the other parent on social media, the reason judges get upset about that, and Christine touched on this briefly, but because your kids may see that, right? or you know their friends parents may see that their teachers you know people in the community that your kids interact with those parents are going to see that and then guess what all of a sudden Johnny's not allowed to play with your son anymore after school because >> you're not invited to the sleepover party or Yeah. >> So that's why you want to watch out for that. All right. This should go without saying but let's just go ahead and say it. This is the obvious, but obviously if you are in engaging in a romantic relationship with somebody who's not your spouse and you're married and you're either going through the divorce process or maybe you're not yet and you're just trying to kind of you're doing what you're not supposed to do, right? And you just haven't been caught yet. Be careful what you send, right? I mean, you shouldn't have to say this, but it happens all the time, right? >> People are texting. People are sending messages of erotic nature. They're sending nude photographs, videos, and we're getting that stuff in. >> Yeah, those just so frequently make their way into an attorney's office one way or another. I mean, it just the people that thought they had it hid the best or had the most protections. Um, guys, that there there we did a whole minieries. There's life after divorce. Just hang on. It's coming. All that gets to come as soon as you're done. Just hold off. just give it five minutes. Like there's just no reason like that instant gratification isn't worth it. Isn't worth what you might be risking. It might be losing. I know it's exciting. I know it's fun, but don't just don't do it. >> Yeah. And we're not the morals police. We don't judge. We just represent. But >> do it and don't put it on social media. >> Well, that's it, right? I mean, we're going to say it, but if you're going to do it, just don't put it in writing. Don't sex. Don't send videos. Don't send pictures. Save it for in person for goodness sake. Right. you know, and you know, if they get if they're smart enough and they already have a a inkling that you're doing something and they've already got the PI on you, then that's how you'll get caught. But >> they'll be caught doing it live, right? >> That's right. But it's that's better than, you know, having some over video that you thought you deleted on your phone, right? I mean, how many times you seen that spouse gets suspicious? What's the first place they're going to >> to your deleted photos? >> To your phone. Deleted photos. Going to your phone, deleted photos, right? deleted text messages, right? And sometimes if you're not thinking and you're in the heat of the moment, right? You're excited, either you forgot to delete or you deleted but you didn't permanently delete, >> right? Or the best. Okay, so we had a case where my client suspected that husband was texting with a girl. So what she did was she did get his phone and she pulled up the text messages, but then she pulls the actual records. No, there's no content there. But she sees over probably 40 to 50 texts between this one number that suspiciously just isn't in the text thread. So what is the inference there? I know you text it out over 40 times, in over 50 times, but it's not in your text thread. Like it's it's almost obvious what is going on there. And we were able to use that. But I don't have to have the whole truth. Sometimes the imagination is better than the truth. Why else would he be deleting these? Why would he and just this one? It's not like he deletes all of his text from everyone. There's this one suspicious number. And though the records show dozens on dozens of texts, nothing corresponds in his phone. There has to be a reason they were deleted. And we were able to get some really good evidence on that. >> Well, and sometimes the phone records will also show that an image was sent. It It won't give you the image, >> right? >> But like you think you're being slick, right? And you're deleting the text messages, you're deleting the photographs that are sent or received. But if the phone records are pulled, it will show that a image was sent or received. It's not going to show depending on the phone record. This is 99% true depending on the phone carrier. It's not going to show the actual image, but it's going to show that an image was sent, >> right? >> So, just just don't do it, folks. It's probably the best advice. Got to be smarter than that. All right. Sometimes backup, you know, sometimes folks have their their phones backed up and it's in the clouds. Obviously, if that's the case, you may have thought you've deleted something, but you really haven't because it's in the clouds. So, again, safest thing is just uh not to do any of that because in extreme cases, and you don't see this happen a lot, but we have had cases where somebody is that been out of shape. Either they emotionally can't get past it or they think it really will affect the outcome of their case. and don't put it past some forensic investigator and an attorney to subpoena your phone or your computer and download hard drives. And so that can get a little scary. So, uh, you know, you definitely want to watch out for that. So, bottom line, assume everything you send, everything you receive can and would be read by a judge. Keep your communication brief and factual when you're having disagreements or arguments. probably better to have those in person versus airing it all out on texture or leaving voice messages. And just be strategic with how you use your communication. >> And while we're just talking about the negatives, remember this can be used as a positive, too. Just like we just told you, it's going to be read. So, if you can work with your attorney and send some very wellthoughtout, well-written, well-composed emails, texts that you may know the other side is going to poorly respond to. Remember that it's it's not just about being a victim. It's not just about getting those messages. I have ghostritten dozens texts, emails, things in in any specific case where I'm like, just say it like this or make sure you say this and then whatever they say, let's go from there. like do run those by your do not go rogue. Run those by your attorney. Even if it's something as small as you know where are we going to enroll in soccer, are we going to reenroll in the same school or are we going to use the same dentist? Certain things like that. Like the way that you say certain things just can either make you look really good or really bad. And then especially if you're getting into something really meaty and you do expect this to have like a lot of fall back um on it. So, even like we're going on a vacation and my parents are taking us to the beach and you know he hates your parents and it's going to be a whole thing like just work with us to make sure it may be a conversation that needs to be better spent from my attorney to his attorney or I can help you write a message. So, just while most of them that you go rogue on may hurt you, remember that you can work with your attorneys to send ones that will in fact help you. I call it manufacturing evidence and we manufacture evidence all the time through just simple written communication. And if the other side is unsuspecting, doesn't really know what you're doing. They fall right into those traps, too. So, do use it to your advantage, but don't go rogue and do it without the supervision of a experienced attorney. >> No, that's true. And I've used it before to get admissions. I think I had a case where it was an adultery case and the parties had a conversation, but no proof other than the conversation. I said, "Hey, send this message to your spouse and see if they'll write back admitting that they were wrong and that they're sorry and it'll never happen again." And of course, that's exactly what happened. And we had it. So great advice with offices in Athens and Sani. Oxendine Law is here to guide you through every stage of the divorce process. Subscribe wherever you listen and don't forget to subscribe on YouTube for more legal insight. We'll catch you next time.