Key Takeaways
Digital Evidence Can Be Powerful. Digital Evidence consists of texts, emails, social media posts, photographs, videos, financial records, and other electronic information.
Relevance Matters More Than Embarrassment. A social media post is not important simply because it looks bad. It should help prove or disprove an issue before the court.
Electronic Evidence Must Be Authenticated. Under New Hampshire Rule of Evidence 901, the party offering digital evidence must provide enough proof that the evidence is what the party claims it is.
Context Matters. A single screenshot can be misleading. The surrounding conversation and circumstances may tell a very different story.
Do Not Delete Potential Evidence. Once litigation is pending or reasonably anticipated, deleting relevant electronic information can create serious problems.
Obtain Evidence Lawfully. Potentially useful evidence that may exist does not give someone permission to access a spouse’s private account or protected device improperly.
Assume Your Communications May Be Read in Court. During family litigation, communicate electronically with the understanding that a judge may eventually see what you write.
Digital Evidence Has Become Part of Modern Family Law
A divorce proceeding once produced boxes of paper evidence. Today, two smartphones often hold much of the story of a marriage and family.
Spouses discuss money by text. Parents coordinate exchanges through messaging apps. Social media records travel, relationships, employment changes, and purchases. Banking applications create electronic histories of spending and transfers. As a result, digital evidence can affect parenting disputes, financial claims, contempt proceedings, and many other issues in family law cases.
The emotional side can be difficult. Divorce already causes people to scrutinize years of personal history. Discovering that private messages or social media activity may become courtroom evidence can make the process feel even more invasive.
People also commonly misunderstand digital evidence. Not everything found on a phone is admissible, and a damaging screenshot does not automatically prove what someone thinks it proves. Courts may consider relevance, authenticity, hearsay, context, and other evidentiary requirements.
Understanding these rules can reduce uncertainty. The best approach is usually neither to ignore your digital history nor to search obsessively through every electronic account you can find. Instead, understand what may matter, preserve relevant evidence, communicate carefully, and obtain information lawfully.
How New Hampshire Law Treats Digital Evidence
New Hampshire does not have a separate evidentiary system for text messages, Facebook posts, or other electronic communications. Traditional evidence principles apply to digital evidence much as they do to other documents and communications. The New Hampshire Supreme Court addressed this principle in State v. Palermo, 168 N.H. 387 (2015), concluding that established rules of evidence were sufficient to authenticate Facebook messages.
Several evidentiary rules are particularly important in family law cases.
Digital Evidence Must Be Relevant
Under New Hampshire Rule of Evidence 401, evidence is relevant when it tends to make a fact that matters to the case more or less probable. However, even relevant evidence may sometimes be excluded under Rule 403 when its probative value is substantially outweighed by concerns such as unfair prejudice, confusion, delay, or unnecessary cumulative evidence.
This distinction matters with social media.
Suppose a divorcing parent posts a photograph holding a cocktail at a party. The photograph may upset the other parent, but that does not necessarily make it relevant. If alcohol use has nothing to do with the issues before the court, the photograph may establish very little.
If that same parent has testified that they stopped drinking and alcohol use is a disputed parenting issue, however, the photograph may become considerably more relevant.
The same applies to new relationships, vacations, purchases, and other online activity. Good family law advocacy separates information that is emotionally significant from evidence that is legally significant.
Text Messages and Social Media Must Be Authenticated
Before electronic evidence can be admitted, there may be a basic question: Is this actually what the person offering it claims?
New Hampshire Rule of Evidence 901 requires sufficient evidence to support a finding that an item is authentic. Authentication may be established through direct or circumstantial evidence.
This issue frequently arises with screenshots. Imagine that one spouse produces an Instagram direct message supposedly sent by the other spouse, who denies writing it. A name or photograph appearing on an account may not always resolve authorship. In State v. Chandler, 176 N.H. 216 (2023), the New Hampshire Supreme Court analyzed the authentication of Facebook messages through additional evidence concerning the parties’ established method and pattern of communication to connect the communications to their purported author.
Similar evidence may be useful in family court. Authentication could come from the recipient’s testimony, a telephone number, distinctive information within the conversation, surrounding messages, an established communication pattern, or corroborating evidence.
This is one reason preserving an entire conversation can be better than keeping only a cropped screenshot.
Hearsay Does Not Automatically Exclude Text Messages
People often think excluding “hearsay” only excludes spoken words and assume written communications can be used in court. The actual analysis is more complicated.
Hearsay generally concerns any out-of-court statement offered to prove the truth of what it asserts. Not every statement is offered for that purpose, and the Rules of Evidence contain exclusions and exceptions.
Rule 801 is particularly important because it addresses statements offered against an opposing party. That can make a litigating spouse’s own texts, emails, and other statements significant.
Suppose a parent testifies, “I never agreed to switch weekends.” A text from that parent saying, “That’s fine, I’ll take the following weekend instead,” could be powerful evidence.
Other electronic records may present different hearsay questions. Business records, for example, may be admissible under Rule 803(6) when the required foundation is established. Admissibility therefore depends on what the evidence is, why it is offered, and whether the necessary foundation exists.
The Entire Conversation Matters
Digital communications are unusually easy to remove from context.
Someone can capture three messages from a conversation containing 100. The messages may be genuine while still creating a misleading impression.
Suppose one spouse produces the message: “If you come here tonight, you’re going to regret it.” Standing alone, that sounds threatening. However, if the next message says, “The roads are terrible,” this context reveals that the parties were discussing dangerous driving conditions.
For that reason, parties should generally preserve complete conversations rather than only favorable excerpts. Attorney can determine what is relevant and how the exchange should fairly be presented.
Electronically Stored Information May Be Discoverable
Relevant digital information may also be obtained through discovery.
New Hampshire’s civil procedural rules recognize electronically stored information, often called ESI, as discoverable material. Discovery rules addressing document production expressly contemplate electronically stored information, including writings, photographs, sound recordings, images, and other electronically maintained data. Depending on the disputed issues, additional electronic discovery might involve emails, financial account information, electronic calendars, photographs, social media material, or other relevant records.
Discovery is not unlimited. Disputes may arise over relevance, scope, burden, privacy, and other considerations. The fact that information exists electronically does not automatically entitle the other party to everything on a person’s phone or account.
Preserving Digital Evidence Is Critical
One of the biggest mistakes someone can make is deleting information because it appears damaging.
Once litigation is pending or reasonably anticipated, relevant information may need to be preserved. New Hampshire Civil Rule 25 addresses electronically stored information and specifically recognizes preservation as an issue parties should address.
That does not mean someone contemplating divorce must preserve every electronic file ever created. It does mean potentially relevant information should not be intentionally destroyed because it is embarrassing or inconvenient.
Additionally, deleting a social media post may not erase it entirely. Someone may already have captured it, messages may remain on another device, or backup copies may exist.
If you find potentially damaging material in your own digital history, discuss it with your attorney before taking action. An unfavorable post can often be explained in context. Destruction of evidence creates a separate problem.
Lawful Access Matters
Useful evidence still must be obtained lawfully.
Spouses often know one another’s passwords. They may previously have shared devices or accounts. After separation, however, this creates complicated questions about authorization and privacy.
Do not assume marriage gives you unrestricted authority to enter a spouse’s password-protected email, social media, cloud storage, or other private account. Installing tracking software, secretly accessing a device, impersonating another person, or using credentials without authorization can also create serious legal issues.
If important evidence exists but you cannot lawfully access it, tell your attorney. Discovery, subpoenas where appropriate, or other legal procedures may provide a better avenue.
Common Examples of Digital Evidence in Family Law Cases
A Text Exchange About Parenting Time
A parenting plan requires Friday exchanges at 5:00 p.m. One parent later alleges that the other repeatedly failed to appear.
The text history tells a more complicated story. Several exchanges were changed by mutual agreement, while other messages show genuine last-minute cancellations.
The messages allow the court to examine what actually happened instead of relying solely on competing memories. The complete conversations also distinguish agreed schedule changes from possible noncompliance.
Social Media and a Financial Claim
A spouse claims the other has substantial disposable income and produces Instagram photographs showing expensive restaurants and international travel.
The posts may raise legitimate questions, but they do not establish income by themselves. Someone else may have paid for a trip, or the expense may have been funded through debt.
An attorney might compare the posts with bank statements, credit card records, employment information, and financial disclosures. Digital evidence is often most useful when it leads to more objective corroborating evidence.
Messages About the Children
One parent claims to have been excluded from medical and educational decisions. The other says information has always been shared.
Emails and texts document repeated notices about appointments and school events, but also reveal several important decisions made without consultation.
A judge would not simply count messages and declare a winner. The communications instead help show how the parents actually interact and whether their conduct is consistent with their responsibilities and the children’s best interests.
A Social Media Post that Looks Worse Than It Is
During a parenting dispute, one parent finds a photograph of the other holding a beer at a concert and wants to present it as proof of irresponsible parenting.
If alcohol abuse is not disputed and the children were not present, the photograph may prove very little. Family court does not exist to evaluate every adult choice made by either parent.
Presenting large amounts of marginal social media material can distract from stronger evidence and make litigation unnecessarily personal.
Digital Evidence in an Enforcement Case
A court order requires one former spouse to reimburse the other for certain child-related expenses. The paying spouse claims never to have received the requests.
Emails show repeated invoices, while text messages acknowledge receipt.
These communications directly address a disputed fact. In contempt and enforcement proceedings, contemporaneous electronic records can sometimes provide a clearer picture than competing recollections months later.
Fictional Fact Pattern: When a Smartphone Becomes Part of the Case
Consider Alex and Jordan, a fictional New Hampshire couple divorcing after 12 years of marriage. They have two school-aged children and disagree about parenting time and finances.
Jordan seeks the majority of parenting time and alleges that Alex frequently prioritizes social activities over the children. Jordan produces screenshots from Alex’s social media showing concerts, restaurants, and weekend trips, along with several angry texts Alex sent shortly after separation.
At first glance, the evidence appears damaging.
Alex’s attorney obtains the complete conversations and parenting records. They provide important context. Both parties used inappropriate language during several arguments. More significantly, the calendar and messages establish that most of Alex’s weekend travel occurred when the children were scheduled to be with Jordan.
The financial evidence presents a different issue. Alex posted photographs from two expensive trips after claiming an inability to contribute toward certain marital expenses. Credit card records obtained during discovery show that Alex personally paid for one vacation, while the other trip was reimbursed by Alex’s employer.
The court could reasonably view these categories of evidence differently. The photographs may have limited significance to parenting because they do not establish that Alex neglected the children. The personally funded vacation, however, may warrant further examination of Alex’s financial claims.
Suppose Jordan also produces screenshots appearing to show Alex admitting to undisclosed investment income. Alex denies sending them.
The court must now consider authentication under Rule 901. The account involved, communication history, surrounding messages, distinctive details, and testimony from the recipient could help determine whether the messages are what Jordan claims they are. Palermo and Chandler illustrate how traditional authentication principles can be applied to electronic communications.
The larger lesson is that there is rarely such a thing as simply “good” or “bad” digital evidence. Each item must be considered for relevance, authenticity, context, and its relationship to an issue the court actually needs to decide.
Frequently Asked Questions
Can text messages be used in a New Hampshire divorce?
Potentially, yes. Text messages may be relevant to parenting, finances, agreements, contempt allegations, or other disputed issues. They must still satisfy applicable evidentiary requirements.
Are screenshots admissible in family court?
They can be. A party may need to authenticate the screenshot and establish its relevance. Preserving the original conversation can make both authentication and context easier to establish.
Should I delete embarrassing social media posts before filing for divorce?
Generally, no. Deleting potentially relevant information when litigation is pending or anticipated can create additional problems. Ask your attorney before deleting or altering material that could relate to the case.
Should I stop using social media during my divorce?
Not necessarily, but caution is wise. Assume anything you post could eventually be seen by your spouse, their attorney, or the court.
Can my spouse access my private social media account?
The fact that information may be relevant or discoverable does not automatically authorize another person to access a private account. Parties should use lawful discovery methods when information is not otherwise available.
Can I secretly record my spouse?
Recording laws raise issues separate from ordinary text messages and social media evidence. New Hampshire is a two-party consent state, which means that all recorded parties must give their consent to be recorded. Before recording a conversation, obtain legal advice about whether the recording would be lawful under the circumstances.
Can social media prove my spouse is hiding money?
A post may raise questions, but rarely establishes someone’s complete financial circumstances. Attorneys can compare social media with tax returns, bank and credit card records, employment information, and other evidence.
Can deleted messages still be recovered?
Sometimes. Copies may remain on another device, account, backup, or with another participant. Recovery depends on the technology and circumstances.
What digital evidence should I save?
Preserve information reasonably connected to contested issues, especially communications involving children, finances, court orders, threats, or disputed events. Preserve the complete conversations and avoid editing the material.
What should I do if I discover damaging digital evidence?
Preserve it lawfully and discuss it with your attorney. Do not alter the evidence or use questionable methods to obtain additional information.
Final Thoughts
Social media, text messages, and other digital information can are important evidence in New Hampshire divorce and family law cases, but their significance depends on context. The most embarrassing post is not necessarily the most useful evidence, and a dramatic screenshot does not automatically establish what happened.
Strong digital evidence connects directly to an issue the court must decide, can be authenticated, and can be understood in its proper context. Preserve relevant information, communicate thoughtfully, and resist the temptation to delete unfavorable material or obtain evidence improperly.
Perhaps the simplest rule is also the most useful: during family litigation, treat every text, email, photograph, and social media post as something you may someday need to explain to a judge.
About the Author: Damian Turco is the Founder and Managing Partner of Turco Legal and has practiced divorce and family law since 2008.
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This article is for informational purposes only and should not be interpreted as legal advice. Articles on our blog are written at a historical point in time and the information presented accurately reflects the law at the time of the article’s writing. If you’d like to better understand how the law applies to your case, schedule an attorney consultation by calling any of our offices or by clicking the Schedule a Consultation link on this page.