Divorce evidence used to mean bank statements and the occasional private investigator. Today it means text threads, screenshots, social media histories, and phone recordings. Much of it is admissible. Some of it is dangerous to the person who collected it.
Text Messages and Emails
Texts and emails are generally admissible in Colorado courts if they are authenticated — that is, if the party offering them can show they are what they claim to be and who actually wrote them. Authentication can come from the recipient's testimony, the phone number or account, the content and context, or the other party's admission. Messages written by the opposing spouse are a party's own statements and come in readily; they are not excluded as hearsay. Messages from third parties face more hurdles.
The practical lesson is preservation. Screenshots are a start, but a complete export of the thread, with dates and the sender's information intact, is far more persuasive and far harder to challenge than a cropped image.
Social Media
Posts, photos, and check-ins are fair game, subject to the same authentication rules. A vacation photo posted during a claimed period of financial hardship, or a post describing a lifestyle inconsistent with sworn disclosures, is the kind of evidence that reshapes a case. Privacy settings do not make a post inadmissible; they only make it harder for the other side to find.
Deleting posts after litigation begins is a separate problem. Once a party reasonably anticipates litigation, destroying relevant evidence can be sanctioned as spoliation — with consequences ranging from adverse inferences to fee awards to, in serious cases, a finding against the party on the issue. The right response to an embarrassing post is to preserve it and let counsel decide how to address it.
Recordings: The Line That Gets People in Trouble
Colorado is a one-party consent state. A person may lawfully record a conversation to which he or she is a party, without telling the other participants. A recording of your own conversation with your spouse is therefore generally lawful, and often admissible if relevant and authenticated.
Intercepting conversations you are not part of is entirely different. Placing a recording device in the other spouse's car, installing software on his or her phone, or recording the children's conversations with the other parent can violate Colorado's eavesdropping and wiretap statutes and federal law — exposing the recording party to criminal liability and civil claims, and destroying that party's credibility with the court. Evidence obtained that way is likely to be excluded and is nearly always more damaging to the person who gathered it than to the target. Talk to counsel before pressing record, not after.
The Children's Records
Communications between a child and the child's therapist carry special protection. Colorado law limits a parent's ability to waive the child's privilege in a custody dispute, and courts are protective of the therapeutic relationship. Parents who attempt to obtain or use a child's therapy records to gain advantage should expect resistance from the court and from any professional appointed for the child. Tread carefully, and go through counsel.
Rule One of the Digital Age
Every message you send during a divorce should be written on the assumption that a judge will read it aloud in court. That includes texts to the other spouse, emails to family, and posts to friends. Communicate about logistics, keep the tone neutral, and save the commentary for your attorney. The parties who fare worst in the digital-evidence era are rarely the ones whose spouses hired an investigator; they are the ones who documented their own worst moments and pressed send.
Talk to a Denver Divorce Attorney Who Handles Complex Estates
Aaron Herzberg is a divorce attorney in Greenwood Village, Colorado, serving Denver and the Front Range, with more than 30 years of trial experience and a practice focused on high-net-worth and financially complex divorce. Digital evidence can win a case or lose one, and the difference is usually decided before anyone thinks to ask a lawyer.
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This publication is attorney advertising. It is educational information only, it is not legal advice, and it may not reflect the most current legal developments. Reading it does not create an attorney-client relationship. No attorney-client relationship exists until a conflicts check is complete and both parties have signed a written engagement agreement.
Read the full guide on DenverDivorce.com: Privacy & Discretion in Divorce.
