In divorce and family law litigation, text, email and cell phone records are often important. In many cases, parties seek this evidence in discovery when it bears on relevant issues.

Text, email and cell phone records can sometimes be relevant as to child custody. For example, it might relate to inappropriate behavior and conduct that could bear on the fitness of a parent. The possibilities can be infinite, but it can show drug and alcohol abuse, inappropriate behavior and activities or time away from the family and children.

In states where marital misconduct is a factor, it can also be relevant. In other words, it could provide evidence of affairs. It could also provide evidence of gambling, illicit behavior or even physical or mental abuse.

Electronic evidence may also be important as to income and hidden assets. Some parties might, as an example, get their paycheck stubs emailed to them. They also might have receipts and statements emailed to them relative to unknown marital assets or bank or credit card accounts.

To get this information, lawyers oftentimes issue requests for production. In other cases, lawyers may issue subpoenas for this information to the other party or third party carriers. A lawyer may also take a deposition or hire a private investigator.

An increasing trend now is for parties to use encrypted applications in an attempt to conceal communications that they do not want others to see. Three common applications are Wickr, Vaporstream and Confide. These applications boast military-grade technology where they assert that the communication is protected. The features vary by application, but the messages often self-destruct after being read and do not have the name of the sender or receiver of a message on the same page.

For lawyers, they have to be cognizant that individuals going through divorce or family law matters may be using these applications. For parties going through a divorce or family law matter, or where they reasonably anticipate litigation, an important question is whether they should use these applications.

Ultimately, the big risk is that a court might conclude that a party is spoliating relevant evidence by using these applications. If the court concludes that a party is spoliating evidence, that party could be subject to sanctions in the family court.

A family court judge might also conclude or infer that a party using these applications has something to hide. Otherwise, why use applications like this? This may mean that the party ends up getting an adverse result as it relates to important components of a divorce or family law matter because their behavior looks suspicious.

Ultimately, anybody going through a divorce or family law matter should speak to a lawyer about their specific situation. But, in a general sense, parties should be careful about any written communication in the midst of a divorce or family law matter. Whatever is put in writing could ultimately be used as evidence.

However, parties should also probably steer clear from these encrypted applications. While the privacy components may be appealing, and may conceal the exact nature of the communications, the appearance of having something to hide is likely not worth the risk.

Nonetheless, encrypted applications are likely to become an increasing trend in divorce and family law litigation. The popularity, and ease of downloading these applications, is likely to make it an appealing way to communicate for many.