Can They Subpoena Texts Between Me and My New Spouse?
Sometimes — and the honest answer is that this is one of the more state-specific, fact-specific corners of evidence law. Marital communications privilege is real and can protect confidential spousal communications, but it isn't absolute, it doesn't automatically cover text messages everywhere, and most states carve it back once a case is actually about a child's welfare.
1.There are actually two different "spousal privileges"
Spousal testimonial privilege lets a spouse decline to testify against the other spouse at all. Marital communications privilege is narrower and different — it protects the content of confidential communications made during the marriage, and it can survive divorce for communications made while married. In a custody case, it’s almost always the communications privilege that’s relevant, not the testimonial one.
2.Only communications that were actually confidential count
The privilege generally only protects communications the spouses intended to keep private — not messages sent with a third person on the thread, forwarded to someone else, or sent somewhere the other spouse could reasonably see them (a shared family group chat, for example). A text you later showed a friend or forwarded may have already lost the protection.
3.Whether it covers text messages at all varies by state
This isn’t settled the same way everywhere. Some states’ courts have declined to treat texts as the kind of "communication" the privilege was written for, treating the statute as written around oral conversation. Other states presume text messages between spouses are confidential communications the same as a private conversation would be. Which category your state falls into changes the entire analysis.
4.Most states carve out an exception once child welfare is at issue
This is the part that matters most for a custody case: many states, and several federal circuits, recognize a "child welfare" or "child abuse" exception to marital communications privilege — meaning the privilege doesn’t apply in proceedings concerning abuse, neglect, or the welfare of a minor in either spouse’s custody or care. If the underlying custody case turns on exactly that kind of allegation, the privilege that might otherwise protect these texts may simply not apply.
5.The privilege has to actually be asserted — it isn’t automatic
A privilege doesn’t self-execute. If a subpoena or discovery request reaches these texts, someone — generally through their attorney — has to formally object and assert the privilege for a court to rule on it. Producing the texts, or not raising the privilege in time, can waive it.
Why this isn't a DIY question
Whether a specific set of texts is privileged depends on your state's statute, how your state's courts have interpreted "confidential communication," whether anyone else ever saw or was copied on the messages, and whether the custody case involves the kind of child-welfare allegation that trips the exception. That's a lot of fact-specific analysis for an attorney, not something to resolve by reading a blog post — raise it with your lawyer before responding to any subpoena or discovery request that reaches these messages, and definitely before producing anything voluntarily.
For the discovery process itself — how these requests actually work, and what a subpoena for the other parent's texts looks like from the other direction — see our guide to getting text messages through discovery.
This is general information, not legal advice, and Verity is not a law firm. Privilege law is genuinely state-specific and fact-specific — talk to a family law attorney licensed in your state before making any decision based on this article.
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