Sometimes, divorces get especially contentious, and soon-to-be ex-spouses engage in curious behaviors. It is not uncommon, for instance, for one or both spouses to attempt to play “detective” against the other. This is likely to happen if one spouse feels the other is having an affair or is attempting to hide assets from the other. By either hiring an actual private investigator or by playing sleuth on their own, one or both parties will attempt to find damaging information about the other that helps their position in the divorce and hurts the other’s position. This can include trying to track down or intercept the phone calls or e-mails of the other. Some of this sort of behavior is legitimate; however, some of this behavior is illegal and can result in criminal penalties against the spouse who steps over the line. Not only this but the information illegally obtained may be excluded from the divorce hearing.
Knowing what is and what is not permitted can be difficult. For example, overhearing a conversation in a crowded restaurant is not usually considered eavesdropping; but picking up a phone while others are talking on the same line can result in civil and criminal penalties. An experienced family law attorney can help you know if your spouse has crossed a line or if you yourself are in danger of violating the law.
No Problem with Information Sent or Delivered to You
First, you should know that in the vast majority of cases, messages or information that is sent to you directly from your spouse or spouse is not illegally obtained and can be saved and presented later in court. For example, if your spouse sends you hateful or threatening text messages, or leaves voicemails on your cellphone that make you uncomfortable, these can be saved and kept and later used in court. Even if your spouse did not intend to send you a particular message (such as including your e-mail address in a group e-mail) can be safely retained, stored, and used in court. This is why it is generally a good idea to keep a record of any and all communications you have with your spouse while the divorce is ongoing.
Note that publicly posted information is also fair game. Suppose that, despite a contentious divorce, you and your spouse remain friends on Facebook. If your spouse posts statements on Facebook about you, any children the two of you have in common, his or her plans or intentions as far of the divorce are concerned, or statements about an affair he or she was or is having, these statements can be printed, saved, and later used in court. This explains why savvy attorneys caution their client against making statements or “posts” on social media during the divorce and why they often scour social media sites for public statements made by the other side.
“Intercepted” Communications are Prohibited
A party to a divorce will encounter problems, however, if he or she attempts to access without authorization “a facility through which an electronic communication service is provided” and obtain, alter, or prevent authorized access to a wire or electronic communication while the message is being electronically stored in such a system. The sort of behavior that would violate this statute includes “snooping” on your spouse’s computer and reading his or her e-mails without permission.
For instance, suppose that Olivia believes her spouse Tim is concealing marital assets by giving things to his friends for “safekeeping.” During a mediation session, Olivia sees that Tim has left his computer in the room while everyone else but she has left to take a break. Olivia seizes the opportunity and gains access to Tim’s e-mail account. Her suspicions are confirmed once she sees several e-mails between Tim and his friends in which Tim talks about delivering valuable property to his friends until after the divorce is over. Olivia prints out the e-mails and tries to use them later in court. Not only may a judge rule the printed e-mails inadmissible, but Olivia may find herself guilty of a first-degree misdemeanor, subjecting her to criminal penalties.
O’Brien v. O’Brien
The Florida case of O’Brien v. O’Brien is illustrative. In this 2005 case, the husband and wife were seeking a divorce. Prior to a hearing, the wife had installed a certain spyware program onto her husband’s computer. This particular program intercepted e-mails and electronic communications at the time they were either sent from or received by the husband’s computer and then routed a copy of the intercepted message to a special file on the computer’s hard drive. The wife would then access the secret file and retrieve the intercepted message. The wife attempted to introduce the messages she intercepted using this program (which showed her husband having an affair with another woman), but both the circuit court as well as the appellate court denied the wife’s request to admit the communications into evidence. The appellate court found that the wife’s actions were a violation of Florida law, and therefore the intercepted communications were properly excluded from evidence.
Accessing a Computer Without Permission
Spouses engaged in a hostile divorce may not want to actually intercept e-mails but may simply want to look through their Spouse’s computer files. This too is prohibited by Florida statute and can be the basis for criminal charges, jail, and fines. For instance, suppose that instead of accessing Tim’s e-mail account, Olivia simply uses the opportunity presented by everyone else’s absence from the room to look through the files stored on Tim’s computer. Unless Olivia has Tim’s permission to look through his computer files, she can be prosecuted criminally. Not only this, but any information she discovers through her illegal snooping can be excluded from future divorce hearings.
Eavesdropping and Wiretapping
Yet another behavior spouses sometimes engage in is eavesdropping or wiretapping. This typically occurs when one spouse records a telephone call (note: not a telephone message or voicemail) without the other spouse’s knowledge or consent. For instance, suppose that after a night of drinking Tim calls Olivia’s cell phone. Olivia picks up and, noticing that Tim sounds inebriated, she begins recording the phone call without his knowledge. Just as Olivia suspected, Tim begins making statements beneficial to Olivia’s position in the divorce: he may admit that he has assets “she will never know about,” or he may claim he’s not interested in having custody of the couple’s children. Olivia finishes recording the conversation and then delivers the recording to her attorney.
Or suppose that Olivia and Tim are back at the mediation session on break when Olivia notices that Tim picks up an office telephone to make a call. Curious, Olivia goes into another room and picks up the same line Tim is calling out on. Olivia hears Tim talking with another woman about how they need to “keep their stories straight,” and that the woman still needs to “take a few things” to their friends until the divorce is over. Olivia hangs up the phone on which she was listening and rushes to tell her attorney about what she just heard.
Finally, suppose Olivia is craftier and “bugs” the telephones in the office where Tim and she are having their mediation session. These “bugs” record both outgoing and incoming telephone calls and send the recordings to a location that only Olivia can access. Olivia takes the recordings to her attorney for him to review so he can formulate a strategy to assist in “encouraging” Tim to settle on terms that are favorable to Olivia.
In each of these cases, Olivia has likely violated Florida’s wiretapping law. This can have serious legal consequences for Olivia. She can be prosecuted and face criminal penalties. Tim could file a civil suit against Olivia for violation of his civil rights, resulting in Olivia having to pay him monetary damages. Finally, the information Olivia gained can be excluded from future court hearings, which eliminates any advantage Olivia may have had in obtaining the information.
Defenses to Eavesdropping or Wiretapping Charges
In Florida, it is not considered eavesdropping or wiretapping if the parties to the conversation consent to the conversation being recorded. For instance, suppose that in the first scenario, Olivia asks Tim if she can record their conversation and Tim, understanding what she is asking, agrees to the recording. This would not likely be considered eavesdropping since she has obtained Tim’s consent to record the conversation. In the second scenario, Olivia would need the permission of both Tim and the other woman in order to listen to the conversation. In the third scenario, Olivia would again need the consent of Tim and anyone else he speaks to in order to “bug” and record conversations.
In addition, it is not considered eavesdropping if one person overhears a conversation between others if that conversation is held in a public place or other location where a reasonable expectation of privacy does not exist. Suppose that, while about town one day, Olivia sees Tim and another person talking on a bench in a park. Olivia walks close enough to overhear the conversation and hears Tim making several statements about the pending divorce. Olivia then calls her attorney and reports what she has heard. In this case, Olivia did not violate the eavesdropping statute because Tim was conversing in a public place. A court is likely to find he had no reasonable expectation that his conversation would be private in a public park; the statements he made will likely be admitted.
Contact Us for Guidance
Attorneys would prefer that their clients contact them before recording or intercepting calls or e-mails of their spouses. By discussing any plans to snoop through a spouse’s computer ahead of time, record conversations, or print out e-mails or other documents, an attorney can help guide the person in determining what activity is prohibited and what activity is acceptable. An attorney can also advise a person considering such activity what possible criminal and civil penalties they may face if they follow through with their plans. Finally, because any illegally-obtained information can be excluded by the court and not considered in a hearing, an attorney can discuss the possible ramifications this would cause to the person’s case as well as other ways the information might be able to be obtained.
If you are involved in a divorce and you become aware that your spouse has looked through your computer, read or intercepted your e-mails, or otherwise eavesdropped on your conversations, let your divorce attorney know right away. There are certain civil remedies to which you may be entitled, and your attorney can assist you in filing the appropriate petitions and motions to obtain such relief. Save any evidence you have of the eavesdropping or snooping (videos, witness statements, etc.) as these may be useful in a criminal investigation. Ensure your attorney knows what information you believe may have been compromised, as he or she can take measures to keep this information excluded from court hearings.
If nothing else, divorcing spouses should remain aware of the vulnerability of certain information. Individuals going through a divorce should consider guarding their e-mails and the information contained on their electronic devices. Computers, cell phones, and e-mail accounts should be monitored for unauthorized access or attempts to access them.
Divorcing spouses should also take care regarding what information they post on social media sites and online discussion forums, as these statements are not likely to be protected under Florida law. The same holds true of communications held in public places: for instance, talking with a friend or family member in his or her home about your divorce is likely to be protected from eavesdropping. That same conversation held in a restaurant or around the office water cooler may not be so protected.
If you have concerns about what “snooping” activities are or are not permitted, or what to do if you feel your spouse has illegally accessed your private information, contact the Ayo and Iken legal team right away.