During a Montana divorce, three rules cover nearly everything about phones and social media. What you write can be used as evidence against you. Deleting it once a case is expected is restrained and can be a crime. And getting into your spouse's accounts, devices, or conversations without permission can be a crime too. This page explains each rule with its source, and it is part of our Montana Divorce Guide.
The Rules at a Glance
| Conduct | What the law says | Source |
|---|---|---|
| Your own posts, texts, and emails | Your own statement, offered against you, is not hearsay | M. R. Evid. 801(d)(2)(A) |
| Deleting messages, files, or financial records during the case | Restrained by the automatic economic restraining order | MCA § 40-4-126(1) |
| Destroying or concealing a record to keep it out of a proceeding | Can be tampering with physical evidence | MCA § 45-7-207(1)(a) |
| Logging in to a spouse's account or device without permission | Can be unlawful use of a computer | MCA § 45-6-311(1)(b), (g) |
| Tracking a spouse's location or monitoring their messages through their device | Can be unlawful use of a computer | MCA § 45-6-311(1)(h) |
| Secretly recording a conversation with a hidden device | Violating privacy in communications | MCA § 45-8-213(1)(c) |
| Opening or diverting a spouse's email during the case | Restrained by the automatic order | MCA § 40-4-126(1) |
Why Your Own Words Come In
Hearsay is, in general, an out-of-court statement offered to prove the truth of what it asserts (M. R. Evid. 801(c)). People often assume that rule keeps texts and posts out of court. For a party's own words, it does not. Under Rule 801(d)(2), a statement is not hearsay if it is offered against a party and is "the party's own statement," or a statement the party has adopted or shown a belief in.
That covers a text you sent, a post you wrote, a comment you left, and potentially content you endorsed. Your spouse's lawyer can offer it against you. You generally cannot offer your own out-of-court messages for their truth in the same way. The court still applies the other rules of evidence and decides what a message actually shows.
How Posts and Messages Get Used
Digital evidence tends to matter in three places.
- Parenting. The court considers all relevant parenting factors (MCA § 40-4-212(1)). Messages that disparage the other parent, involve the children in the dispute, or show how parents communicate can bear on those factors, and one objective of a parenting plan is to minimize the child's exposure to parental conflict (MCA § 40-4-233(3)).
- Money. Posts about purchases, trips, or a new venture can be compared with a sworn declaration of disclosure. An asset left off the final declaration is presumed to be grounds to award it to the other spouse (MCA § 40-4-253(4)).
- Credibility. A message that contradicts what a person later says under oath affects how the rest of their testimony is received.
Property and maintenance are decided without regard to marital misconduct (MCA §§ 40-4-202(1) and 40-4-203(2)), so posts offered only to embarrass a spouse about their personal life have limited legal use on those issues.
Do Not Delete Once a Divorce Is Expected
The automatic economic restraining order that issues with the summons restrains both spouses from, "without objectively reasonable justification, intentionally or knowingly damaging or destroying the property of the parties or of either party during the pendency of this action, specifically including but not limited to any electronically stored materials, electronic communications, or financial records" (MCA § 40-4-126(1)). Violations can be enforced by sanctions and contempt (MCA § 40-4-126(4)).
A criminal statute reaches earlier in time. A person commits tampering with or fabricating physical evidence if, "believing that an official proceeding or investigation is pending or about to be instituted," the person alters, destroys, conceals, or removes any record, document, or thing with purpose to impair its verity or availability in the proceeding (MCA § 45-7-207(1)(a)). The same statute covers making or presenting a record known to be false, which could include an edited screenshot.
What you can do instead: stop posting, change your privacy settings, and change your own passwords. Leave existing content, message threads, and backups alone. If an app deletes messages automatically, ask your lawyer about turning that feature off.
Stay Out of Your Spouse's Accounts and Devices
Montana's unlawful use of a computer statute applies to a person who acts knowingly or purposely and without authorization. The listed acts include obtaining the use of or access to any computer, computer system, or network without the owner's consent, using or changing another person's computer credentials without permission, and using another person's computer or credentials to track that person's movements or monitor their communications without consent (MCA § 45-6-311(1)(b), (g), and (h)). The statute does not apply to a person accessing their own personal device (MCA § 45-6-311(4)).
Shared devices and family accounts are where this gets complicated. A tablet the whole family uses, a shared cloud photo library, or a joint phone plan each raises its own question about what you are authorized to see. Ask before you look, and do not go through a spouse's individual email, messaging apps, or cloud account.
Recording is covered by a different statute. Recording a conversation with a hidden device without the knowledge of all parties is violating privacy in communications, as is purposely intercepting an electronic communication (MCA § 45-8-213(1)(c) and (3)). See what not to do during a divorce.
If you believe your spouse has information you need, the lawful route is the disclosure statutes and formal discovery. See also hidden assets and dissipation.
Texting Your Spouse or Co-Parent
- Keep messages short, factual, and about logistics.
- Do not send anything while angry. Wait, then reread it as a judge would.
- Do not discuss the case with or through your children, and do not message them about the other parent.
- Do not threaten. Electronic communications that threaten injury, sent with the purpose to terrify, intimidate, threaten, harass, or injure, are a criminal offense (MCA § 45-8-213(1)(a)).
- Save messages you receive. Do not edit or crop them.
Some parenting plans specify how parents will communicate. See co-parenting after divorce.
If You Are Being Harassed or Monitored
If your spouse is tracking you, getting into your accounts, or sending threatening messages, preserve what you can with screenshots that show dates and senders, and get help. If you are in danger, call 911. The National Domestic Violence Hotline is 1-800-799-7233. A court can enjoin a party from disturbing the peace of the other party or from stalking (MCA § 40-4-121(2)(b)). Our Montana Domestic Violence Guide and our page on orders of protection during a divorce explain the options. Use a device your spouse has not had access to when you look for help.
This page explains Montana law in general as of the 2025 Montana Code Annotated and the Montana Rules of Evidence. It is not legal advice about your specific case.