Divorce FAQ's

Wiretapping and Divorce

1. Can a person record or tape a conversation of his or her spouse?

Pursuant to federal and state wiretapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can’t tape a spouse while he or she is talking to other people, and more specifically a paramour.

In 1991, a New Jersey trial court in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), addressed the issue as to whether a husband violated the wiretapping statute by taping his wife’s telephone communications in the marital home, and whether such actions could result in damages. The court ruled that it was illegal for a person to record the phone conversations of his spouse with another person. The court reasoned that the invasion of privacy was severe. The court found that the secretive taping of a spouse’s telephone calls under those circumstances was an egregious invasion that warranted both compensation and punitive damages.

Therefore, although both New Jersey and federal wiretapping laws permit the taping of a conversation to which an individual is a party, any other form of taping or recording of another person’s conversation can be a violation of criminal and civil wiretap laws.

2. I believe that my husband is cheating on me. Can I wiretap his phone?

Divorce is a nasty business. In my experience, I have encountered many cases where spouses wiretap the home phone, the spouse’s office phone, or the cellular phone in order to obtain information about their spouse’s affair or other information. In New Jersey, the use of an unauthorized taped conversation is inadmissible because the illegal taping violates state and federal law. The spouse could be civilly or criminally liable as a result of attempting to introduce such information.

Many divorce lawyers have had the experience of having a client walk into the office stating that he or she has absolute proof of a spouse’s adultery and cheating ways. In most cases these conversations are not admissible. Thereafter, the clients “fess up” as to the illegal manner in which they obtained the proof. The clients usually admit that the taped phone conversations were obtained through the unauthorized recording of their spouse’s telephone conversation with a new lover. I always immediately advise the client that he/she has violated both New Jersey and federal wiretapping laws, which may expose them to criminal penalties, as well as severe civil penalties. If a client has obtained illegally intercepted communications, then he/she should destroy them, and not attempt to use them to obtain an advantage in any upcoming divorce case.

In summary, the intercepted phone conversations may give a spouse enough proof and motivation to start divorce proceedings. However, the means used to obtain these taped phone conversations can prove to be disastrous. The spouse who conducted the illegal wiretapping can be exposed to a civil lawsuit by his/her former spouse. Moreover, there is potential criminal liability as well.

3. Can I intercept my spouse’s cell phone calls?

The State of New Jersey has adopted a more restrictive wiretap statute than the federal wiretapping law. New Jersey’s wiretap statute defines a wire communication to include “any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.” This is the opposite of the federal statute, which exempts cordless phones. Thus, under New Jersey law, the interception of cell phone communications is prohibited.

4. Can I intercept my spouse’s pager communications?

Someone who suspects adultery often seizes the spouse’s pager and scans the memory for telephone numbers. Scanning a spouse’s pager may provide proof of adultery. An interesting issue that then arises is whether the retrieval of stored telephone numbers on a pager constitutes a violation of the wiretap act. On a federal level, the answer would appear to be no. The New Jersey Wiretap Act is more stringent and defines “wire communication” as including “electronic storage of such communication.”

5. Can I intercept my spouse’s e-mails?

In my experience, many spouses are caught in adulterous situations by having their e-mails reviewed. The Internet has many programs that enable a person to retrieve deleted e-mails. We are now living in an information era. In the past, the most common way a person was busted for adultery was by being trailed by an investigator; in the current world, reviewing e-mail is the most common method. There is no easy answer to the question of whether a spouse can retrieve e-mail messages and records of chat room activity without violating wiretap statutes. If the computer is located in the marital home, then in most cases the interception of e-mails will not constitute a violation of New Jersey and federal wiretapping laws. However, if someone tries to intercept e-mails on a spouse’s computer at work, then a violation of several New Jersey and federal laws results.

An interesting case is White v. White, 344 N.J. Super. 211 (Ch. Div. 2001). This is the first reported New Jersey decision addressing the admissibility of a husband’s “private” e-mail communications between himself and his girlfriend accessed by the wife’s computer expert. The court denied the husband’s motion to suppress the e-mails on the grounds that the wife’s action violated the New Jersey Wiretap Act. Finding that the e-mails had been stored, i.e., saved, “post-transmission” in the husband’s personal electronic file cabinet, the court held that the Wiretap Act only applies to communications that are in transmission, and not to those that have been previously sent and saved.

The White court further held that the wife’s accessing the “private” e-mail communications of the husband did not constitute an invasion of privacy since the husband had no objective reasonable expectation thereof. The evidence showed that the e-mails were accessed from a computer maintained in a sun room that the husband had been occupying during the parties’ in-house separation; that the wife and the parties’ three children were in and out of the room for various reasons, including the use of the computer; and that, while easy to do, the husband failed to employ any privacy protection mechanisms to prevent unwarranted intrusions into his personal files. The court also found that the wife’s arguable snooping into her husband’s personal affairs to learn information about his possible affair was not uncommon under such circumstances.

6. What are the other potential legal ramifications of accessing my spouse’s stored computer files?

In many cases, a spouse who suspects adultery will hack into the cheating spouse’s computer files and e-mails. As discussed above, if the computer is not located in the marital residence, then this intrusion will constitute a violation of both New Jersey and federal wiretapping laws. In addition, there may be some tort liability. Hacking into your spouse’s computer may constitute the common law tort of invasion of privacy or invasion of seclusion. Hacking into your spouse’s computer could also be considered as theft. However, in my experience, it is very unlikely that a prosecutor would file any type of criminal charges if a spouse hacked into a home computer. The prosecutor may be more interested in pursuing theft charges if the computer hacking occurs on the cheating spouse’s computer that is located at his place of employment, or from a computer system of a corporation or financial institution.

7. What is the status of the law with regard to the interception of a spouse’s e-mails and computer records?

With the current prevalence of internet sex and resulting divorce litigation, wiretapping violations are at the forefront in many divorce cases. A spouse who tries to prove adultery by retrieving messages from hard drives, internet services, recycle bins, or other areas of storage could clearly be in violation of both New Jersey and federal wiretapping laws. In summary, the information that was obtained to verify the adulterous relations may be invaluable on a personal level. However, any evidence that is obtained by illegal wiretapping or by illegal hacking into a spouse’s computer should not be used as leverage in a divorce case. An experienced divorce lawyer can actually use the act of illegal wiretapping as grounds to file a civil suit against the violating spouse. The civil suit is filed as part of the divorce case and is called a Tevis claim. The cheating spouse can actually use the wiretapping violation as a bargaining chip to obtain a more favorable divorce settlement.

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