As information is more frequently transmitted through emails, text messages, and social media, electronic snooping between warring spouses has become a growing issue in divorce proceedings.
In recent years, our firm has dealt with spouses installing spyware or a recording device on a spouse’s cell phone or laptop. In one especially litigious case, the mother placed a recording device in the child’s backpack to record the audio of the father’s parenting time. Most frequently, we see spouses who know the other spouse’s email and Facebook passwords and regularly read those communications.
But can this material gleaned from snooping be used against a spouse in court? It depends. As a general rule, the material cannot be presented in court if it is obtained through illegal means. Defining and proving “illegal means” can be difficult, however. If the other spouse told the other his or her password at one point, is that really an invasion? The snooping spouse might be able to deactivate the surveillance before he or she is caught and the other spouse may just look extremely paranoid. It is a relatively new issue which means there are many unanswered questions surrounding this area of the law.
Importantly, the snooping spouse may not even need to present the evidence in court to gain an unfair advantage. One secretly recorded piece of evidence could lead to the discovery of other damaging evidence that the court would admit without question. The most effective defense is to ward off potential surveillance from the start. A few steps we advise clients of include:
-Setting up a new email account. Do not access the account on any computer you share with your spouse.
-If your spouse “updates” or “borrows” your cell phone or laptop, be cautious. Even if he or she “doesn’t know anything about technology” he or she may have taken the device to someone who does and installed spyware.
-Investigate installing anti-spyware.
-No matter how angry you are, don’t write anything that you think may reflect poorly on you.
You alone have the tools to greatly reduce your risk to any digital danger.