So You Think Your Spouse Is Cheating. You Feel Compelled to Confirm It. But How and Why?

Technology has created a new playing field in family matters. There was an interesting article in the Wall Street Journal the weekend of October 6th on this topic. Spouses often want proof that a spouse is cheating. Before you become your own PI, you certainly can consult with Tanya Helfand to guide you during this tough time. Tanya Helfand at Schenck Price has seen wives try to find text messages or emails to prove their husband is having an affair. Or a husband putting a tracking device on his wife’s car to learn if she is being unfaithful. Spouses do not realize that eavesdropping may lead to criminal charges or equitable remedies, even if they confirm the other party was having an affair.

When can a spouse lawfully retrieve electronic messages from the other spouse? Does password protection play a factor? How much access does one have before civil and criminal fines and penalties are imposed? These are important questions one should ask before snooping on their spouse.

New Jersey’s Wiretapping Act is violated when a person intentionally wiretaps or uses electronic surveillance on another’s conversations without consent to do so. There is no exception even when the other party is your spouse. Unlike federal laws, New Jersey abolished interspousal immunity for intentional torts – including wiretapping. That means you can sue your spouse for intentional torts. It is, however, lawful to record conversations of your spouse or another person when the recording spouse is an actual party to the conversation. The Act’s main purpose is to protect one’s privacy. For example, if your spouse threatens you directly in an argument, you can record the threat on a pocket tape recorder. The key is that you are a party in the conversation.

When does a spouse have a reasonable expectation of privacy? Courts apply an objective reasonable person standard when establishing the type of intrusion. Actually, the intrusion must be highly offensive to one’s expectation of privacy. Additionally, general societal norms assist Courts in determining areas where one has a reasonable expectation of privacy.

Technological developments have led Courts to consider ever-changing factors when faced with these issues in family matters. Did the spouse access the other spouse’s email inside the marital home from a marital computer? Does the household have general access to the computer? Were the emails stored on a shared hard drive? Or did the spouse retrieve emails from the other spouse’s password protected work telephone or computer? The specific facts of the case will allow the Court to determine whether or not the spouse was authorized access.

Another way a spouse may violate the Act is when recording conversations between a parent and a child. In the middle of a custody battle, one parent may believe this information will influence a Court to name him/her parent of primary residence. Usually this is not the case. These actions may actually harm the snooping parent. A Court will allow vicarious consent, in limited circumstances, when it is necessary to protect the child from being seriously harmed or if the child is too young.

Aside from wiretapping and electronic surveillance, a spouse may also use GPS tracking devices. Again these techniques will only be lawful when there is “authorized access” to the car. Is the car joint marital property? Or is it a work car? Also, the locations detailed in tracking reports must be within the boundaries where a person has no reasonable expectation of privacy.

What happens when a spouse illegally records a telephone conversation or tracks a spouse’s car with GPS surveillance? The evidence, such as telephone recordings, electronic messaging, and GPS tracking reports, might be suppressed. Spouses sometimes feel they want to gather evidence to attack the other spouse’s credibility in the courtroom or that the infidelity will outrage or shock the judge so they will “win”. Most of the time, the information gathered will not be beneficial. In fact, even if recorded conversations are not properly obtained, the evidence may still not be significant or even used to impeach a spouse’s credibility at trial or even benefit one’s own defense. In the end, Courts will likely only admit such evidence when it relates to custody issues and harm to the children.

An eavesdropping spouse may actually be forced to spend more money in the divorce action defending the illegal actions to catch the cheater.

A spouse may use other legal procedures to gather information. New discovery trends exist today. Discovery procedures, such as Interrogatories, Notice to Produce or Request for Admissions, may allow a spouse to demand access or information about the other spouse’s emails, social networking accounts, or even dating sites. Saved text messages when you are a party to the text can contain very valuable evidence and are not illegal. They can be emailed to your attorney to preserve the record and have been proven valuable, for instance, in Domestic Violence cases. Your telephone call records also can document the time of calls and number of calls made.

Think twice before being your own detective in your divorce or custody matters. If you have to know, be careful. Consult with your attorney about reasonable actions and understand that the information may or may not be useful in your court case. Tanya Helfand at Schenck Price can guide you to use and focus on evidence which will help you to resolve your matter in an effective fashion.