Can I Use My Spouse's Text Messages Against Them — and Can They Use Mine?

It is often the first thing out of a client’s mouth: “I have the texts.” A spouse who swears under oath that he never threatened anyone, contradicted by his own words in a message thread. A parent who claims sobriety, undone by 2 a.m. messages she does not remember sending. In an era when people put in writing things they would never say in front of a witness, the message thread has become the workhorse of family court evidence.

But two questions decide whether those messages help you. First: how did you get them? A conversation you were part of is yours to keep and use. One you extracted by logging into someone else’s account, or by intercepting it in transit, may be a crime, a lawsuit against you, and — for intercepted communications — evidence no South Carolina court may receive. Second: how do you handle them? A complete, authenticated export and a stack of cropped screenshots are very different exhibits, and hearings turn on the difference.

This article walks through both questions: how texts actually get into evidence, where the legal lines sit under federal law and South Carolina’s wiretap act, what our Supreme Court’s famous email-snooping case actually held, and the practical habits that make electronic evidence hold up.

Why texts decide family court cases

Family court is a court of credibility. Most contested custody and divorce trials come down to two people telling incompatible stories, and the judge deciding whom to believe. A contemporaneous written record — timestamped, in the other party’s own words, created before anyone was thinking about litigation — cuts through that in a way no amount of testimony can.

South Carolina’s appellate courts treat message evidence like any other evidence, and it shows up in every kind of family court dispute. In Mick-Skaggs v. Skaggs, 411 S.C. 94, 766 S.E.2d 870 (Ct. App. 2014), a husband introduced text messages sent from his wife’s phone — including a message boasting about her conduct at a bar — and the court of appeals found the “text messages are circumstantial evidence that indicate a continued disposition to commit adultery.” Combined with witness testimony, that evidence barred her from receiving alimony. Her explanation — that a friend had sent it from her phone as a joke — went to weight, not admissibility.

That is the general posture: the messages come in, the explanations get weighed, and the party whose own words are on the screen starts at a disadvantage.

The message you already have is worth more than any message you would have to steal.

How a text message actually gets into evidence

Every exhibit has to be authenticated — the proponent has to show the thing is what they claim it is. The governing rule is Rule 901(a), SCRE: the requirement “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

That is a deliberately low bar, and our courts have said so specifically for electronic messages. In State v. Green, 427 S.C. 223, 830 S.E.2d 711 (Ct. App. 2019), the court of appeals addressed the authentication of social media direct messages and rejected the idea that electronic messages need some special, heavier showing: “Rule 901, SCRE, does not care what form the writing takes, be it a letter, a telegram, a postcard, a fax, an email, a text, graffiti, a billboard, or a Facebook message.” The proponent does not have to rule out every possibility of fabrication — in the court’s words, “[i]n the realm of authentication, the law, like science, is content with probabilities.” The judge decides only whether a reasonable factfinder could find the message genuine; after that, doubts about authorship go to weight. The South Carolina Supreme Court granted review and affirmed the authentication ruling “without further comment.” State v. Green, Op. No. 28001 (S.C. filed Nov. 12, 2020).

In practice, texts get authenticated two main ways:

Green itself is a Rule 901(b)(4) case: the messages were tied to their author by a screen name, references to family members and an address, timing, and how the contents fit the other evidence. The same logic authenticates an ordinary text thread — which is why “that’s not really me” is rarely a winning objection; it is an argument about weight.

Screenshots, exports, and the completeness problem

Authentication is where most people think the fight is. Completeness is where the fight usually is.

A screenshot shows a rectangle of conversation, selected by the person who took it. The obvious cross-examination writes itself: What came right before this? What did you say to provoke it? Why does the thread jump from Tuesday to Saturday? A party who shows up with a handful of flattering rectangles invites the cherry-picking accusation — and an answer from the other side, with context.

The stronger practice is a full-fidelity export of the entire thread, made with a phone-backup or forensic export tool that preserves both sides of the conversation with dates and times. Complete exports have three advantages: they preempt the cherry-picking attack, they let your lawyer find the messages you forgot about (helpful and harmful — better to know now), and they give the court confidence that what it is seeing is the conversation, not a trailer for it.

Full exports create a volume problem — thousands of messages nobody can read from the bench — and the rules have an answer for that too. Rule 1006, SCRE provides that the contents of “voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation, provided the underlying data are admissible into evidence.” The originals or duplicates must be made available to the other side, and the court can order them produced. In a custody case this looks like a summary exhibit — messages organized by topic or by date, each entry keyed back to a page in the complete, sequentially numbered (Bates-stamped) export. The judge reads a ten-page chart; the ten thousand messages sit behind it, available for checking. Done properly, it is the most digestible form of proof a family court gets.

The line between lawful and unlawful: whose conversation is it?

The cleanest way to draw the line: your own conversations are yours. Messages you sent, messages sent to you, threads sitting on your own phone or in your own accounts — keeping them, printing them, and handing them to your lawyer raises no interception or hacking problem at all. Federal law says this expressly: the Stored Communications Act does not apply to conduct authorized “by a user of that service with respect to a communication of or intended for that user.” 18 U.S.C. § 2701(c)(2).

Other people’s conversations and accounts are not yours. The federal Stored Communications Act makes it an offense to “intentionally access[] without authorization a facility through which an electronic communication service is provided,” or to exceed an authorization, and thereby obtain a communication “while it is in electronic storage.” 18 U.S.C. § 2701(a). That is the statute implicated when a spouse logs into the other’s email or messaging account, guesses a password, or uses credentials remembered from happier times. It carries criminal penalties, and it gives the injured person a civil cause of action with damages of no less than $1,000, punitive damages for willful violations, and attorney’s fees. 18 U.S.C. § 2707.

Real-time interception is governed by a different pair of statutes: the federal Wiretap Act, which prohibits intentionally intercepting any wire, oral, or electronic communication, 18 U.S.C. § 2511(1)(a), and South Carolina’s own wiretap act, discussed next. Interception is the live category — recording calls, planting listening devices, installing software that captures messages as they come and go. The distinction matters because the remedies differ: the interception statutes come with an evidence-exclusion rule; the Stored Communications Act’s remedies are criminal and civil, not a suppression rule of its own.

Between the clean categories sits a gray zone that generates most of the real-world disputes: the shared tablet where a spouse’s messages sync, the family iCloud account everyone uses, the password shared years ago for one purpose and used mid-divorce for another. These situations turn on authorization — a fact-specific question that South Carolina litigants should not resolve in their own favor by assumption. If you have to ask whether you were allowed in, stop and ask a lawyer instead.

South Carolina’s wiretap act — and the rule that throws evidence out

South Carolina’s version of the wiretap act is the Homeland Security Act’s interception chapter, S.C. Code Ann. §§ 17-30-10 to -145. Section 17-30-20 makes it a felony to intentionally intercept, attempt to intercept, or procure another person to intercept “any wire, oral, or electronic communication.” The chapter also creates a civil action: a person whose communications are unlawfully intercepted, disclosed, or used may recover actual damages of not less than $500 per day of violation or $25,000, whichever is greater, plus punitive damages and attorney’s fees. S.C. Code Ann. § 17-30-135.

Then comes the provision that matters most in family court:

Read that again, because it is broader than people expect. It is not just the recording that gets excluded — it is the contents and any evidence derived from them, in any proceeding. A spouse who bugs the marital home or installs intercept software on the other’s phone has not acquired ammunition; they have acquired a felony exposure, a civil damages claim against themselves, and a pile of evidence the family court cannot receive. Federal law has a parallel exclusion for unlawfully intercepted wire and oral communications. 18 U.S.C. § 2515.

Note what the exclusion rule does not reach: lawful interceptions. Which brings us to recording.

Recording phone calls: one-party consent — with fine print

South Carolina is a one-party consent state. The statute makes it lawful “for a person not acting under color of law to intercept a wire, oral, or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception.” S.C. Code Ann. § 17-30-30(C). Federal law is to the same effect. 18 U.S.C. § 2511(2)(d).

So yes: you may record your own phone calls and face-to-face conversations with your spouse, without telling them. Recordings of a spouse’s admissions, threats, or rages — made by the person on the other end of them — are a recurring feature of family court litigation, and one-party consent is why.

The fine print:

• You must actually be a party. Recording conversations you are not part of — your spouse’s calls with a new partner, with their lawyer, with anyone — is interception, and everything above about felonies, civil damages, and exclusion applies.
• The federal exception has a purpose clause. One-party consent does not protect a communication “intercepted for the purpose of committing any criminal or tortious act.” 18 U.S.C. § 2511(2)(d). Recording as evidence-gathering is one thing; recording as a tool of blackmail or manipulation is another.
• State lines change the rules. Some states require every party’s consent. A call recorded lawfully from a couch in Columbia may still create exposure if the person on the other end sits in an all-party-consent state. Get advice before recording interstate calls.
• Children’s calls are their own hard problem. The recording parent is typically not a party to the child’s calls with the other parent. If you believe your child is at risk on those calls, take the problem to your lawyer, not to an app.

Jennings v. Jennings: what the email-snooping case did — and did not — decide

South Carolina has its own famous marital-snooping case, and it is routinely misread in both directions.

In Jennings v. Jennings, 401 S.C. 1, 736 S.E.2d 242 (2012), a husband confessed to an affair conducted over email. A family member of the wife then accessed his Yahoo! webmail account — by guessing the answers to his security questions — read the emails between him and the other woman, printed them, and handed them to the wife’s divorce lawyer and private investigator. The husband sued under the federal Stored Communications Act. The Supreme Court of South Carolina held, five to zero in result, that the SCA claim failed — because the opened emails, left sitting on the webmail server and stored nowhere else, were not in “electronic storage” as the federal statute narrowly defines that term.

The justices split three ways on the reasoning. The lead opinion reasoned that a single, opened copy could not be stored “for purposes of backup protection,” since a backup presupposes another copy. Chief Justice Toal, concurring, would have adopted the federal government’s “traditional interpretation”: once opened, the emails were no longer in “temporary, intermediate storage … incidental to … electronic transmission,” so the Act did not reach them. Justice Pleicones agreed the statute was not satisfied but read its two storage categories as alternatives. Three rationales, one result, and no majority rule — which is itself a warning about building any plan around the case.

What Jennings did not hold is more important for anyone tempted to treat it as permission:

• It did not hold that reading a spouse’s email is lawful. The lead opinion went out of its way to say the result “should in no way be read as condoning her behavior.”
• It did not hold that password-guessing, shared logins, or “they left it logged in” amount to authorization.
• It did not address South Carolina’s wiretap act or its exclusionary rule — the emails were accessed in storage, not intercepted in transit.
• It did not close the courthouse door on victims of snooping. Chief Justice Toal noted that plaintiffs in that position “are not foreclosed from seeking redress by alternative theories.”

Jennings is a narrow decision about a narrow federal definition, decided on the facts of one webmail configuration. Treating it as a green light for account snooping is a good way to become a defendant.

Even when the evidence gets in, how you got it follows you

Suppose the shortcut works — the snooped-for message is not excluded, and it lands in front of the judge. The acquisition still has a price, and in a custody case the price is paid in the currency that matters most.

Custody is decided by the best interest of the child, and S.C. Code Ann. § 63-15-240(B) directs the court to a list of factors that are substantially about parental conduct and judgment: each parent’s actions to encourage the child’s relationship with the other parent; “the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute”; efforts to disparage the other parent; and a catch-all — “other factors as the court considers necessary.” A parent who put spyware on the other parent’s phone, recruited a child to report on the other household, or rifled accounts mid-litigation has handed the court a live demonstration of exactly the traits those factors screen for. The message may come in; the conduct comes in with it.

Credibility works the same way. Family court judges make credibility findings constantly, and a party caught obtaining evidence deceptively is asking the judge to trust them on everything else anyway. And the collateral exposure is real: as Jennings shows, the snooping itself can spawn a separate lawsuit running alongside the divorce — this time with the snooper as the defendant.

Practical handling — and the myths that get people in trouble

The practical rules are short:

1. Preserve everything, now. Back up your phone and keep the originals — the device and the accounts — not just printouts. Expect the other side to demand the native data.
2. Export, don’t just screenshot. Complete thread exports with dates, times, and both sides of the conversation. Screenshots can supplement; they should not be the foundation.
3. Delete nothing. Not the embarrassing thread, not the 2 a.m. messages, nothing. Destruction of evidence mid-case is a separate problem that tends to eclipse whatever the messages said — and the other side has their copy regardless.
4. Number and organize. Sequential page numbering (Bates stamping) of the full export, with summary exhibits organized by topic under Rule 1006, SCRE, keyed back to the numbered pages.
5. When in doubt about how something was obtained, tell your lawyer before anyone tries to use it. Your lawyer can only steer around a problem they know about.

And the misconceptions, collected: