Of course you're going to text with your spouse, just like you would anyone else. (Well, maybe not just like anyone else, but you get the point.) And if your spouse is becoming your ex, there might be some things contained in your text messages you don't want seeing the light of day, much less a divorce proceeding.
But if your soon-to-be-ex's attorney subpoenas your text messages, do you have to hand them over? Isn't there some kind of marriage privilege?
While the marriage privilege generally allows a spouse to refuse to testify in a trial as to confidential statements made to each other, the privilege can usually be waived by either party. So the sender or recipient of text messages, even during the course of the marriage, can voluntarily produce those messages. While some states do have consent requirements to record conversations, those requirements generally don't apply to text messages, which are contemporaneously recorded.
And even if spouses have an expectation of privacy in texts when it comes to third-party access, you can't exactly expect to keep texts you sent to your ex private from your ex.
Things may get a little more complicated if an attorney is requested texts between you and a third party. This most commonly occurs if your spouse is trying to prove infidelity, but can also be relevant in sorting out finances, property splits, or even child custody. Of course, you could voluntarily hand those texts over, but what if you don't want to?
For the most part, in order to legally request evidence in a divorce proceeding that evidence must be relevant and not protected by some legal privilege. While the majority of states have no-fault divorce laws (meaning you don't need to prove a good reason for divorce or fault by either spouse), some states still consider infidelity as a factor for divorce. So in those states, a divorce lawyer may subpoena text messages that prove infidelity.
In no-fault divorce states, an attorney would need to allege any requested texts would contain information relevant to some other part of divorce. Evidence of hidden marital assets, illegal activity, or information pertaining to your child's best interests may all be grounds for a valid subpoena for text messages.
Divorce proceedings, and the evidence rules that apply to them, can be complicated. Contact an experienced attorney for help with your divorce.