5 Texts to Never Send During a Divorce or Parenting Case

In this episode of I Do Until I Don’t, attorneys Martin Sliwinski and Leo Sokolov tackle a topic that comes up in nearly every divorce and parenting case they handle: the text messages clients send — and shouldn’t.

Martin and Leo walk through five categories of communications that can seriously damage your case, explaining what courts and guardians ad litem look for, how co-parenting communication should actually be handled and what to do when a court order limits or prohibits contact entirely. They also discuss tools like Our Family Wizard, the value of running messages by your attorney before sending and—as a bonus—why double-checking your recipients is more important than you might think.

Whether you are at the beginning of a divorce or deep into a parenting dispute, this episode offers clear, practical guidance for protecting yourself and your case.

Key Moments:

1:27 – (1) Messages that alienate
2:42 – What is a guardian ad litem?
3:40 – (2) Messages that reflect an inability to co-parent
5:24 – (3) Messages that discuss litigation with the minor children
6:41 – (4) Messages that are in violation of a court order in their content
8:48 – (5) Orders that prevent any communication
12:40 – (Bonus) Messages intended for someone else

Transcript:

Leo: One of the things the courts will look at when determining who should make decisions for the kids is an ability to co-parent with the other parent. So, if you are a parent who wants to make joint decisions with the other parent, you should not be sending messages that would question your ability to do that.
Martin: Once you send it out, you can’t get it back.

[Music]

Leo: All right. So communication is key to any co-parenting relationship, but it’s a dual-edged sword. There’s positive communication and negative communication when it comes to your divorce case. So, today, Leo and I are going to have a discussion as to five texts that you should never send to your significant other during a pending parenting case.

Leo: Yeah, this is a fun topic. So let… I think instead of doing specific texts, we can give some examples. Let’s break it down into types of text messages people send.

Martin: Sure. Like various different categories, [Correct. correct.] for example. And I know we receive these texts all the time where a party says, “Oh, should I send this message to another individual?” And you know, sometimes the answer is no. And now we’re going to go through why you shouldn’t send specific messages because they may be harmful to your case because I know various text messages, emails, letters, they can all be used in a court of evidence [voicemails] as an exhibit. So, in the in the heat of the moment, you may think, you know, that this is not a big deal that you’re sending this message but it can come back to bite you.

Leo: When in doubt, don’t send.

Martin: Is that your advice there?

Leo: That’s my advice usually. So, let’s go through the kind of five categories that we kind of came up with in preparation for today’s kind of conversation. Um, and I’ll let you start with the first one.

Martin: Sure. So, we’ll put this under the category of texts that alienate a parent from their children. So, Leo, should I send a text message to my significant other saying, “I’m not going to let you see the kids. You’re not going to see the kids. You’re not responsible enough for the kids?”

Leo: Absolutely not. And let’s back up a little bit. So, when we talk about alienation, I think we should define it because it’s a term of art, I think, in our practice field. So alienation talks about an idea where the judge will grant parenting time and decision-making responsibilities for the child, with the idea that the parents can cooperate and facilitate a relationship with the other parent. So any messages that would show a judge or a guardian at lightum if it’s appointed, or even a child’s rep that you can’t co-parent and you want to… and you’re trying to turn the children against the other side and bring the children in the middle of the divorce proceeding or a parentage proceeding. That’s what we’re talking about when we talk about alienation. And so, yeah, a text message like that obviously is not a good idea. Don’t send. If you have a question about a text message that you want to send, you know, send it to your attorney, send it to us. We’ll look it over. We’ll help you craft it. But definitely don’t want to come off before the court, or before the GAL, as the party who’s trying to prohibit or interfere with the other parent’s relationship with the children.

Martin: Sure. And you mentioned another legalese, so I’ll just explain a guardian ad litem, because this is going to be important for a lot of our text messages. What is a garden ad litum? So, it’s an individual appointed by the court to serve as the eyes and the ears of the court, and they conduct an investigation, and they interview the parties, the children, any collateral witnesses that may be around. And the importance to this specific segment is that, a lot of times, you’re going to be sending your communications with the other party to that guardian ad litem. You may be sending pictures, videos, but at the same time, you’re probably going to be sending a copy of the communications. And so it’s important that those communications that you are sharing with the guardian ad litem are positive and paint you in a favorable light. In the flip side, if you do have negative messages out there, you can expect the other side to show that to the guardian ad litem [100%]–that this was inappropriate, toxic, harassing, [first thing they’ll send] communication. Exactly. Right. And you want to avoid that by never sending it in the first place because once it’s sent, you can’t take it back.

Leo: Can’t take it back. Yeah. So, the next the next category kind of flows from that. It’s messages that reflect an inability of one parent to not co-parent with the other parent. And so it kind of ties in with the alienation, but it goes a little bit further because one of the things the courts will look at when determining who should make decisions for the kids, for school, medical, religion, extracurricular activities, is an ability to co-parent with the other parent. So if you are a parent who wants to make joint decisions with the other parent, you should not be sending messages that would question your ability to do that. So, text messages saying, you know, “I’m going to make this decision without talking to you” or “I don’t care what you think. This is how it’s going to be.” Those kinds of messages should not be included in any kind of communications with the other side.

Martin: So, Leo, if I’m your client, I shouldn’t be sending a message to the other side saying, “I’m signing the child up for swimming, and I don’t care what you have to say about it.”

Leo: Yeah. Definitely not.

Martin: Okay. So, what would be an appropriate communication variation of that? Would it be something along the lines of, “Hey, can we sit down, have a conversation about this, discuss the advantages and disadvantages, and come to a joint decision on swimming?”

Leo: Yeah, of course. You know, it doesn’t even have to be that formal, [ok] you know. I mean, sure. Yeah. But at the same time, you can do a message where, you know, I talked to, you know, “I talked to Johnny, and he said he was interested in playing soccer this summer. Can we talk about that? Is that something you would be in support of? Here are the kind of options that I was able to research for the soccer team. Feel free to research your options. Send them over my way. Let’s have a communication about it. Let’s see if we can make a decision within the next you know 7-14 days, so that we can get them signed up.” You know that shows an ability to co-parent. It shows a, you know, a want to co-parent and those are all good positive signs that a judge or you know a guardian ad litem would take away from such a communication.

Martin: Perfect. So, I’ll transition us to the third category of text messages, which is you don’t want the court, or the guardian ad litem, or the other side to have any copy of text messages of you indicating or representing that you’ve discussed the litigation with the minor children. And so, for example, you don’t want to send a message saying, you know, “I spoke with my kids and the child support’s not enough” or, you know,… “I spoke to the kids about what the judge told you in the courtroom.” And the reason being is it can be very traumatizing, and it’s not in the best interest of the children. You’re going to hear that term all over the… all over the place if you have a pending divorce case, which is the best interest of the children, they already feel the effects of the litigation. Even if they don’t know about the details of it, knowing the details only makes it even more potentially traumatizing and stressful in a way that they don’t need to be subject to those kind of components.

Leo: Yeah. And even, you know, text messages to your, you know, child saying, you know, “I spoke to mom and dad, and she doesn’t want you to play soccer”, for example, working off my previous example. [Sure.] “So, you can’t be signed up for soccer because dad doesn’t want you to do it” or “Dad doesn’t want to pay for it”. You know, those kinds of communications with a child in addition to the communications you mentioned, there’s no place for them. They shouldn’t be happening. Courts don’t want to see it. Guardians don’t want to see it. You know, your attorneys don’t want to see it. You know, we’re there to get, you know, to figure out what’s in the best interest for the children. And you know that’s what the court’s looking for. All these other things that are directly directed to the children are just unnecessary. [Exactly.]

Leo: Um all right. Number four. This goes back to the types of topics you bring up in communications with your spouse or significant other during a proceeding. And that is communications that are in violation of a court order in their content. And so, what I mean by that is many times, you know, throughout the pending litigation, courts will enter orders saying you know parties shall only discuss child-related issues via text message or in general. And so, if you have that kind of order, it limits what kind of topics you should be discussing with the other side; you want to avoid other topics. So, if you have a topic, you know, limitation that only child-related issues, right, you shouldn’t be discussing property settlement maintenance or all the other things that go along with your divorce proceeding in those communications because now not… The topics themselves are not problematic, maybe, but the problematic part is that you’re violating a court order, and courts never want to see you violate orders.

Martin: Sure. So one natural question that may arise out of that is: Well, if I can’t talk to them about the financial aspects of my case, how do I get that across? How do we come to a settlement? And the answer is if you have counsel, then your attorneys take on that role for you. So you can always tell them, hey, look, this is what I’m looking for in terms of the sale of the residence, or to keep the residence. And then your attorneys can have that conversation. If there’s a court order in place that says you can only discuss about the children, that’s a hard and fast line.

Leo: And I think we’d be remiss to [not] mention this is that if you have that kind of order in place, something must have happened prior to that order being there, where that kind of communication was not productive or helpful. And so at that point, once the order is in place, going back to it, that’s probably going to be problematic. And then another option… comes up, you know, you can always request mediation with the other party. And so [Of course] when you’re in a group, you know, in a mediation setting, then you can have that discussion where it’s more professional. You have other professionals with you. Um but yeah, if you have an order saying don’t do something, don’t do it. It’s as simple as that… for general advice in all proceedings.

Martin: Yeah. Speaking on that same exact topic, the fifth category of text messages is if there’s an order in place that prevents any communication at all, such as an order of protection being in place that says that there will be no communication by any means…don’t have any communication. [Yep.] Okay.

Leo: Yeah. And then with that order of protection, that might be a criminal violation. So, you’re going to have some criminal issues going on if you do violate it. Another type of common order that comes out is, you know, a judge will enter an order or a GAL will recommend an order that is then later entered that says only communications via an application such as Our Family Wizard or Talking Parents. And so what that means is if you… usually this comes out if you’re having issues with texting, there’s been some inappropriate messages sent back and forth. What the judge is trying to do is kind of alleviate those issues and try to suppress them basically. And so they’re saying, “Okay, you can now only communicate via Our Family Wizard, for example.” So if that’s in your order, communicate via Our Family Wizard. Don’t go writing emails, calling people, leaving voicemails, texting them, writing on Facebook Messenger, WhatsApp, whatever communicate, Instagram. Just communicate pursuant to the order. So, those kind of flow in with the last two, kind of go with…

Martin: Sure. They flow very similarly. And so, if I have an order of protection against me and it says I cannot communicate with the other party, is it okay if I send them a harmless message of, “Hey, how’s the weather?” You know, “How are you doing? [Nope.] How’s the child?”

Leo: Yes. It’s not okay. [It’s not okay.] It’s not okay. [All right.]And tell you what, if you want to send them, you know, a package, don’t do that. Don’t send them a link to a gift card. I mean, I’ve had…

Martin: Sure. Don’t post on social media about them.

Leo: Don’t Yeah. Anything that can be conceived or perceived in any way that shows that you’re trying to communicate with them when you have a restriction of that such communication is always, you know, frowned upon.

Martin: PAnd Leo, another thing is, technology is fascinating. Now they have certain applications, like I believe Our Family Wizard does this, which is they have tone meters built into the communications and essentially what the application will do is it’ll let you know in terms of how aggressive the messages are that you are sending and it’ll give you either a red light to signify signify that hey look this may not be an appropriate message to to send to the other party you know take a couple extra minutes to think about this before you send it out. Or it may give you a green light, in which you know, hey, look I’m in the clear. The tone looks good. I’m, you know, effectuating proper communication that’s not going to be judged because when it comes to Our Family Wizard messages, they are very easy to print out an entire log and to show anyone in terms of how you’re personally communicating.

Leo: Yeah. And I what I tell my clients is, you know, when you hire an attorney, there’s a tool bag for things to accomplish certain things, right? So all the things we kind of talked about, you know, strategy on how you message, entering agreed orders, limiting certain messages, requiring parties to communicate via certain applications, those are all toolkits to try to get, you know, your particular case to its finish line. So not all of these things are going to happen in every person’s case, but if there is issues communicating, you know, maybe the Our Family Wizard is a great solution for that. And then, like you mentioned, the tone meter is another toolkit, right? Your attorney or I or you could recommend that to our clients: Let’s use Our Family Wizard. Because then we can track the messages, A. B, you can use this, you know, tone meter to make sure the messages that you are sending are properly, you know, worded and all of that. And so these are just tools for you to succeed in your case, especially with parenting issues.

Martin: Sure. And I believe you mentioned this previously, which is why not just send your attorney a copy of the message beforehand.

Leo: Yeah. Always.

Martin: Right? We’re professional communicators at this point, right?

Leo: You can even ask for, like, templates. I mean, I’ve done that before. You know, if you want to have a template for how to ask your significant other whether, you know, regarding extracurricular activity, we can draft a template and you kind of fill in the middle and as you get more comfortable, you know, communicating in a way that the court or the GAL would find acceptable, then you can kind of, you know, start using your own words. But if you, you know, if you need the guidance, we’re there for you. And there’s tools for that. Um, there’s also, and this is not just, this is my bonus one. [Ok. yeah.] I always have to do bonuses. Number six, and this doesn’t have to do with, you know, children, and this one’s also, you know, it it’s it’s funny, but it’s not, but, you know, a lot of times parties in a divorce or or, you know, a parentage action, um, may be seeing other other people. Okay. Uh, have other relationships. And so, one thing I always tell my clients is to make sure that text messages between people go to the right people.

Martin: Oh, sure. You don’t want to accidentally…

Leo: You don’t want to send something embarrassing or inappropriate to a party in a case that was designed for somebody else. And so just make sure that anything… you know double-check everything and make sure you’re not going to get in trouble for something that, you know, something that I call you know avoidable.

Martin: Yeah. That circles back to my point, which is once you send it out, you can’t get it back, right? And then you have to do this whole scenario where you’re explaining why it happened and that emotions were flustered and whatnot. And that’s not where you want to be. You want to avoid sending the message in the first place. And that’s why there’s tools like Our Family Wizard Tone Meter, or having attorneys such as ourselves go ahead and review those messages in advance. You have all these tools available to you.

Leo: And I guess the final point is it’s not just text messages, right? [Correct.] Emails, anything. Any kind of communication, and that’s important. You know, any communication in today’s day and age can be printed out. It can be screenshotted. Even if it’s something like, you know, on Snapchat, where it disappears, somebody can still screenshot it. So anything you send out, you have to imagine that a judge may or will see it at some point. And so anything that you would feel uncomfortable with a judge seeing, you probably should avoid sending.

Martin: Yeah, I agree. I’ve had judges tell me multiple times: when you’re inside a divorce case, you’re under a microscope. Every move you make is hyper-analyzed in a way it wouldn’t be if you’re outside of court. So, that’s a consideration to take.

Leo: Yep. I think that covers all the uh the text messages.

Martin: Perfect. Yeah. So, that’s five categories of text messages you should not be sending to the other side.

Leo: And when in doubt, ask your attorney.

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