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.â€
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.
Continue Reading