There was a time in the not-so-distant past when spying and eavesdropping tools were the exclusive domain of national security agencies, John Le Carre novels and James Bond films. But with the advent of inexpensive and easily concealed spy cams, miniature recording devices, spyware programs, ubiquitous cell phones with the ability to record nearly everything, and shared email accounts it is as if everybody can be their own CIA.
It may be tempting now during the COVID-19 pandemic lockdown to spy on your spouse, especially when the couple still share the marital home or if they remain in contact when the children switch between parents if the man and woman live separately.
As a divorce lawyer helping men and fathers in New Jersey, inevitably I hear clients tell me, “Brad, I caught her on camera!” or “Listen to what I recorded her telling my kids!” They feel they have gathered fireproof evidence to use against their spouse as we negotiate a divorce settlement or are heading to court, or are contesting a post-divorce custody issue.
The photos, videos or recordings certainly paint a damning picture. Unfortunately, except in a small number of limited exceptions, the “evidence” cannot be used.
New Jersey Privacy Laws Protect Even the Worst Spouse or Mother
I know that many men have a lot of extra time on their hands right now. So, it can be tempting to view a spouse’s stored emails or her text messages whether because you’re both still in the same home or by hacking.
It’s become a common way of learning whether a wife is having an affair or hiding income.
But, there have been federal and state laws protecting phone and electronic surveillance since the late 1960s and they have been updated several times since. Each carry stiff penalties for being convicted of violating either because they are considered an invasion of privacy.
So, for instance, if you are trying to demonstrate that your ex is an unfit mother and hack into her email account to uncover lurid messages with her boyfriend, a family court judge may find you committed an invasion of her privacy and rule that the messages may not be used as evidence. There is also a chance that the judge might also recommend that the state prosecute you for violating the law.
On the other hand, there have been cases where a man found his wife’s emails to a lover on the hard drive of the family’s shared computer. Because they were readily accessible, a court ruled that the spouse did not have a “reasonable expectation to privacy” and allowed them to be used in evidence.
So, the information a man or father in New Jersey who is leaving his wife uncovers by hacking into her computer may be useful on a personal level if it confirms his suspicions about adultery or some other type of wrongdoing. But do not count on being able to use it as leverage in negotiating your divorce, especially regarding issues surrounding custody and visitation schedules for children.
Video Surveillance and GPS Tracking in a New Jersey Divorce
It is perfectly legal to place video surveillance cameras in your own home if you are still living there. In the outside world, it depends entirely on where and how it is done. Anything in a public space is fair game but not if it involves peering through windows.
There is an exception. When a spouse secretly sewed a tiny recording device in a sweater worn by a child, a court held that was an invasion of privacy and ruled the evidence inadmissible.
Installing a GPS tracking device in your wife’s car is lawful provided the man or father either owns it or is a co-owner. But if the monitoring violates your wife’s reasonable expectation of privacy, constitutes stalking, or violates a restraining order, it is illegal and out of bounds.
Likewise, recording her landline and mobile phone calls is strictly off-limits unless you are on the call.
The Effect on Spousal Support, Child Custody and Other Divorce Issues for Men and Fathers in New Jersey During and After COVID-19
Technology offers many benefits but men and fathers who are getting a divorce need to understand what the law allows when it comes to collecting evidence to use in the process. As satisfying as it may be to capture a “Gotcha!” moment, chances are we won’t be able to use it in helping you with your divorce.
If you are a man or father who is contemplating a divorce – or know somebody who is – and want to know whether you can use recording, video or GPS information to make your case, call me or any of our experienced family law attorneys for men and fathers in New Jersey. Reach us at either 973.562.0100 in Nutley or, in Montclair, at 862.245.4620.
Like you, we are all working at home. But our electronic infrastructure allows us to be in touch with each other and with the courts. We can schedule a “face to face” meeting with you in our video conference room, talk on the phone or communicate by email.