Obtaining evidence that is compelling, as well as legally admissible, is one of the most challenging aspects of any divorce trial.  Some cases can be proven with documentation such as bank statements, police reports and text messages.  Physical evidence, however, is not always available, especially when your allegations involve circumstantial behavior such as emotional abuse.  In such cases, spouses often resort to making audio or video recordings to substantiate their claims.  There are also extreme cases where one spouse becomes aware of the other's criminal or legally liable actions.  A recording of the guilty spouse admitting to his or her actions, or acknowledging the other spouse's non-involvement may protect the innocent party from being prosecuted or sued.

Of course, the tricky part of recording your spouse is doing it legally, which primarily involves being in compliance with New Jersey's Wiretapping and Electronic Surveillance Act.  The law allows you to intercept or record conversations as long as you have the consent of one of the involved parties.  Thus, you are not required to obtain your spouse's permission to record any conversations, phone calls, etc., in which you are a direct participant.  It sounds simple, but complexities arise when other parties are involved, or if the conversations take place in areas where one has an expectation of privacy.  

For example, let's say a husband recorded a couples therapy session in which his wife admitted to cheating on him.  The husband was unable to find any physical evidence of the affair, but a direct confession from his wife is certainly compelling evidence.  The problem is that while he's a direct participant in the conversation, the recording was made during a session in the therapist's office, where it's certainly reasonable for his wife to have an expectation of privacy.  This expectation is supported by the American Psychological Association's policy on patient confidentiality.  It's highly probable that although the husband technically had a right to record the conversation, making it public would be an invasion of the wife's privacy.  The husband may try to get the therapist to testify on his behalf, but that's a sticky situation since the therapist is obligated to maintain client confidentiality.  As long as the wife refuses to give consent, disclosing any information from the session, even statements that were only made by the husband, could be seen as an indirect disclosure of the wife's personal information.

When it comes to recording or monitoring your spouse, it's best to consult an experienced divorce attorney to ensure that you're in compliance with the state's laws.  Privacy laws for methods such as GPS tracking and retrieving emails from shared devices is an incredibly complex and rapidly changing area of law.  Without legal advice from an attorney, you may end up violating your spouse's privacy rights, which could lead to a lawsuit for monetary compensation.  For more information on gathering evidence for a divorce hearing, please schedule a free consultation with the divorce attorneys of Villani & DeLuca, P.C.