Making changes to procedural rules can sometimes create unpredicted after-affects, which can take some time to become apparent.
The South Carolina Supreme Court changed the rules regarding temporary hearings just over a year ago, the most important change being that they set a limit of eight pages of affidavits that each litigant may submit (excepting fee affidavits and Financial Declarations and the like). This limitation notably excludes from the page count “attachments or exhibits offered only as verification of information contained in the affidavits.”
The language of the rule doesn’t offer much guidance as to what the Supremes actually intended to be permissible by way of attachments, and judges frequently differ in their own interpretations of the rule. This lack of clarity has led divorce attorneys to test the boundaries of the rule on their own, and after a year of such testing, the primary after-affect of the rule has become clear: text messages are now the undisputed King of Temporary Hearings.
Text messages have been around for a long time, first as something just for the kids, then increasing across every demographic, until today, when it is estimated that 20 trillion text messages will be sent in 2013. But even with those kinds of numbers, before the ubiquity of smart phones the value of text messages as evidence in a case was almost nil. They simply couldn’t be easily retrieved from phones for the purpose of making hard copies; I recall asking clients to take photographs of especially important text messages so we could download and print them.
Now we can take and email screenshots, or send texts directly to email. The technology has made it increasingly simpler to access what might be a treasure trove of evidence from our phones. And what do we divorce lawyers in Charleston do with that treasure trove? Why, we print them on paper and attach them as exhibits to our eight pages of affidavits, of course, dozens and hundreds of them.
What does this mean to you, the frequent texter who is now considering divorce? It means that all of those nasty texts you and your significant other have been blasting back and forth to one another are likely to relevant in your your divorce case.
Of course, there isn’t much you can do about the messages that already exist. You and your attorney will have to deal with those as they come. But you can, and absolutely should, modify your texting behavior starting today. Here’s how:
1. Get control of yourself.
This may come as a surprise, but whether or not you “win” a text argument is not important. Being able to show your spouse how right you are, how wrong they are, how angry you are, etc., is simply a matter of ego. Text messages are the perfect forum for a constant back and forth, getting in the last word, boasting about how awesome and expensive your lawyer is, being as ugly as possible without having to look the other person in the eyes. It’s all ego. Make a conscious effort to suspend your ego, don’t engage in the war, and limit your contacts to even and calm discussion of only the most important and pressing issues. It won’t be easy, but you don’t have any room for error here. Do it now.
2. Pretend you are copying every text message you write to a Family Court judge.
I’ve stood in front of Family Court judges who have been angered by the words or actions of a litigant before. It is unpleasant. If you don’t want to stand in front of an angry Family Court judge, re-read #1 before you hit “send” on that particularly nasty text message.
3. Quietly collect the nasty texts you are receiving from your spouse.
Nothing that you say, or text, will cause your spouse to stop bombing you with ugly messages. So give them enough rope to hang themselves with. If you have sufficient control over your own behavior, continue politely engaging your spouse by text even in the face of a text assault. You have every right to engage in non-hostile communication with them on important topics, like the kids, and you also have every right to collect a digital file of all of the abusive responses you receive, without any notice to them of your collection activities. If you are technologically challenged, there are apps and how-tos that can make this task much simpler, or you should ask your attorney for assistance.
Note: while your divorce attorney in Charleston can easily retrieve phone records via subpoena, cell phone companies don’t maintain records on text messages. Once they are gone, they are gone.
4. Edit your collection before providing them to your divorce attorney.
Your divorce lawyer will sift through your enormous collection if it is necessary, but wouldn’t you rather do most of the editing and save the $200-$400 per hour? Cull your collection down to the most relevant (and damning) messages before providing them to your lawyer. It saves time and money.
5. Change the password on your phone.
Protect the data on your cell phone from a conniving spouse. Change the security code used to access your device (and while you’re at it, change your Facebook password, your email password, your banking password, etc.). Data lost because of security issues are no good to anybody.
In a close case, the efficient preservation and presentation of text messages to the Court at a temporary hearing may be the difference between prevailing or not. Please feel free to contact us if we may assist you in this process.