If you are involved in a contentious divorce, you may be in the process of gathering evidence for a divorce hearing. This evidence may include photos, voicemails, video footage and financial statements. You may also have come across suspicious or incriminating emails, chat logs and computer files. While such evidence could bolster your case, how you obtained them could make the evidence inadmissible in court. Furthermore, you could be facing criminal charges for violating the New Jersey Wiretapping and Electronic Surveillance Control Act. This law, which is based on the federal Electronic Communications Privacy Act (ECPA) of 1986, regulates the privacy of electronic communications that are stored in computers, phones and mobile devices.
The law's initial purpose was to protect individuals from being recorded without consent, but widespread use of the internet and mobile devices made it necessary to include provisions pertaining to electronic communications. The law does not specifically address inter-spousal spying, so whether or not evidence obtained via spying can be used in a divorce is decided on a case-by-case basis. However, the courts are starting to take these cases seriously, especially when it involves hacking into password-protected accounts, or intercepting cell phone calls and text messages.
One such case that gained national attention occurred in 2010, when a man was charged with violating Michigan's computer crime laws. The defendant, Leon Walker, had hacked into his wife's email account in order to confirm suspicions that she was having an affair. In addition to the information being declared inadmissible in his divorce proceedings, he was charged with felony hacking, which is punishable by up to 5 years in prison. The charges were dropped in 2012, but only after his ex-wife admitted that she had been going through his cell phone at the same time. In this case, it was a situation of one spouse's spying canceling out the other, but there are other situations that may not be seen as inter-spousal spying. Take, for example, the 2001 New Jersey case, "White vs. White", which originated when a wife tried to submit her husband's emails with his mistress as evidence in their divorce case. The husband requested that the emails be rejected, since they were written and sent from his password-protected email account. Unfortunately, the email account had been set to copy all emails to a folder that was located on the desktop of a shared computer. This meant that the wife could have come across these emails simply by accessing a folder that was in plain sight on the computer's main display. The judge ruled that the evidence was admissible, based on the idea that the husband did not have a reasonable expectation of privacy.
If you are in possession of incriminating evidence against your spouse, please speak with the divorce attorneys of Villani & DeLuca, P.C. Our attorneys have the knowledge to advise you on this complicated issue, as well as any other legal issues that may affect your case.