Digital Evidence in a Colorado Divorce: What Actually Gets In

Three things decide whether a message helps you. It has to be relevant to something the court can act on, authentic, and lawfully obtained.

Most people arrive at this question with a phone full of screenshots and a sense that one of them will matter. Some will. Most will not, and the reasons are specific enough to be worth knowing before you spend money on them.

Texts, emails, direct messages, photos, videos, voice recordings, and posts can all become evidence. Whether any particular one does comes down to three separate questions.

First Question: Is It Relevant to Anything the Court Can Act On?

This is where most digital evidence fails, and it fails before anyone looks at it. Colorado divides marital property and awards maintenance without regard to marital misconduct.¹ An affair shown in a text thread does not move the property division or the maintenance figure, unless the messages show marital money spent on it.

Parenting is narrower still. The statute directs that a court shall not consider conduct of a party that does not affect that party’s relationship to the child.² Conduct between the two of you, however badly it reads, usually sits outside what a court will weigh.

What does land is different and less satisfying. Messages about money, about an account you were not told about, or about income that does not match a sworn disclosure go to things a court decides.

So do messages that show a parenting order being ignored, a handover being refused, or a safety concern. The test is not how damning the message feels, but whether it proves something the court is actually deciding.

One category has grown recently and is almost always documented in writing. Colorado’s definition of domestic violence for parenting purposes now reaches coercive control and economic abuse.³ A pattern of control, threats, or financial pressure in messages is squarely relevant.

Second Question: Can You Prove It Is Real?

Authentication is the next gate, and the standard is lower than people fear. You need evidence sufficient to support a finding that the item is what you say it is.⁴ You are not proving it beyond doubt, you are giving the court enough to find it genuine.

Two routes do most of the work. A witness with knowledge can say what the exhibit is, and distinctive characteristics taken together with the circumstances can establish it.

Distinctive characteristics is the one that carries text threads. The number it came from, the name on the account, details only that person would know, and a reply that fits the conversation all count.

This is also why a message from a third party is harder than one sent to you. You can testify about a thread you were in. A thread you were not in usually needs another route, such as the sender’s own admission or records from the provider.

Third Question: Was It Lawfully Obtained?

Colorado requires the consent of at least one party to a conversation, which means you can record a conversation you are part of.⁵ Intercepting a wire or electronic communication without any party’s consent is prohibited.

The line is participation. Recording a conversation you are not visibly present for, without the consent of a principal party, is eavesdropping.⁶ Who owns the phone and who pays the bill do not change that.

Two consequences catch people. Recording your child’s calls with the other parent is risky, because you are not a party to that conversation. It is also not settled that you can consent on your child’s behalf.

The second is account access. Logging into an account that is not yours can expose you to liability even if you know the password, under Colorado’s computer crime statute and the federal Stored Communications Act.⁷ Shared history is not authorization.

There is one more that almost nobody is told. Using or disclosing material you know was obtained this way is itself an offense, so being handed a recording by a third party does not make it safe to use.

Not sure whether what you have is usable?

Ask before you collect anything further, because the collection method is the part that cannot be fixed afterward. Schedule a free consultation with Johnson Law Group and we will tell you what is worth preserving and what to leave alone.

How to Preserve What You Already Have

A printout of data stored on a device counts as an original where it is shown to reflect the data accurately. A duplicate is admissible unless a genuine question about authenticity is raised.⁸ That is why a screenshot can be enough, and why a bad one is not.

Capture the whole thread rather than the line you want. Include the contact name or number, the date and time stamps, and the messages on either side, since those are the distinctive characteristics that authenticate it.

Keep the device itself if you can, and keep the original file rather than only a copy of a copy. Forwarding a screenshot through three apps strips exactly the information that makes it credible.

Note how and when you captured each item. Being able to say what you did, in order, is usually the difference between an exhibit coming in and an argument about it.

Do Not Delete Anything

Once a case is reasonably anticipated, deleting messages is the mistake with the longest reach. A Colorado court may impose an adverse inference where a party destroys evidence it knows or should know will be relevant, and no separate showing of bad faith is required.⁹ The inference often costs more than the message would have.

Divorce adds a second layer. The financial disclosure duty in a Colorado case is mandatory and continuing, so records you would rather lose are records you are obliged to produce.

This applies to your own unflattering messages too, and deleting those is the version that does real damage. Tell your attorney what is there instead, because a bad message you disclose is manageable and one you hide is not.

Turn off disappearing messages and automatic deletion settings in any app you use with the other party. The same goes for anything relevant to Colorado child custody, where message history often carries the schedule.

What You Post From Here

The standard advice holds. Assume anything you post can be read aloud in a contested divorce in Colorado, including posts you later delete and posts set to private.

The practical version is narrower than going silent. Avoid posting about the case, the other party, your finances, or your plans, and remember that other people tagging you produces the same problem.

Frequently Asked Questions

Can I use texts showing my spouse cheated?

Usually they will not help, unless they show marital money spent on the affair, which is relevant as depletion of the marital estate. Colorado otherwise divides property and awards maintenance without regard to marital misconduct. A court is also directed not to consider conduct that does not affect a party’s relationship to the child.

Are screenshots enough, or do I need the original?

A printout of data stored on a device counts as an original where it is shown to reflect the data accurately. Duplicates are admissible unless a genuine question about authenticity is raised. Capture the full thread with names, numbers, and timestamps rather than a cropped image.

Can I record a conversation with my spouse in Colorado?

Colorado requires the consent of at least one party, so you can generally record a conversation you are part of. Recording a conversation you are not part of is a separate matter, and it does not depend on who owns the phone.

Can I log into my spouse’s email if I know the password?

Knowing the password is not the same as having permission. Accessing an account that is not yours can expose you to liability, and intercepting electronic communications without a party’s consent is prohibited. Ask before you do it, not after.

Should I delete embarrassing messages before my case starts?

No. Once a case is reasonably anticipated, deleting messages can support an unfavorable inference, and that usually costs more than the message would have. Tell your attorney what exists so it can be handled.

Talk With a Colorado Family Law Attorney

The collection method is the one part of this that cannot be repaired later. A message gathered the wrong way can be useless, and it can create a problem larger than the one you were trying to prove.

Johnson Law Group works with clients on evidence and disclosure throughout a Colorado divorce, and you can learn more about our approach on our Colorado family law page. You can find our offices in Denver, Colorado Springs, Commerce City, Englewood, and Fort Collins.

You can also read about the background and experience of the attorneys on our team.

Schedule a free consultation and bring what you have, before you gather anything else.

Sources