Divorce and Wiretapping and other Interceptions of a Spouse’s Electronic Communications
Divorce is a difficult time for both parties involved. States have different types of divorce and different requirements associated therewith. Some states have no-fault divorces and others have fault-based divorces. If the parties reside in a fault-based divorce state, information such as whether the opposing party was unfaithful, abused his wife, or engaged in other improper or illegal conduct may be important and admissible.
Wiretapping of Phones
Spouses may wiretap their own home phone, but wiretapping of the other spouse’s office phone or cellular phone in order to obtain information about that spouse’s affair or other wrongdoing is more questionable. There are state and federal wiretap laws to protect individuals from privacy invasions such as wiretapping. In the majority of states, the use of an unauthorized taped conversation is inadmissible because the illegal taping violates state or federal law. The spouse could be civilly or criminally liable as a result of attempting to introduce such information.
Seizure of Other Electronic Communications
An area that more spouses are tending to gravitate towards now in the electronic communication age is obtaining copies of electronic messages from the other spouse’s computer or palm pilot. Depending upon the state involved in the divorce action, such information may be admissible. Under the applicable federal statute, electronically stored communications such as emails are protected the same as the original transmission of the communication. Many states have more stringent laws with respect to retrieval and usage of electronic communications such as emails. However, if the messages were stored on a joint computer, the discovery thereof by the other spouse may not result in any type of violation.
It is still an open question as to whether seizure of a spouse’s pager violates federal law. If not, the information retrieved therefrom may be used in a divorce proceeding, at least in a fault-based state. However, many states prohibit the usage of information retrieved from pagers.
Spouses should be cautious before retrieving phone, pager, or other electronic communications because they may be violating state or federal laws.