Clients often ask me if secretly recording a spouse’s telephone conversations or accessing a spouse’s emails or text messages is against the law. I take a deep breath whenever I hear these questions because there is never a simple answer. The advancements in technology and the ease in which people communicate nowadays have resulted in a dramatic increase in incidents involving interspousal spying. In divorce cases, suspicion of infidelity usually serves as the impetus for clandestine monitoring of a spouse’s telephone calls, Internet activity, email transmissions and text messages. However, the act of intercepting the oral or electronic communications of a spouse may constitute a violation of both federal and state wiretapping statutes; statutes most clients are not aware of.
In New Jersey, a violation of the wiretapping statute gives rise to a cause of action and may result in both criminal and civil penalties. Generally, it is not a violation of federal and state wiretapping laws to record a conversation to which you are a party. However, secretly taping or recording the conversations of others, particularly an unsuspecting spouse, is. All to often, spouses looking for leverage in their divorce cases will resort to wiretapping to prove adultery or other acts of conduct likely to damage a spouse’s credibility at trial. Unfortunately, evidence obtained in violation of the state’s wiretapping statute is not only illegal, but also inadmissible at trial. In fact, clients who present such evidence to me are advised to immediately destroy any and all recordings and are further advised that they may have violated the law.
The issue of whether recording a spouse’s telephone conversations with a third party is a violation of the state’s wiretapping statute was addressed in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991). In M.G., the husband had recorded his wife’s telephone conversations with her paramour within the marital home. The court held that is was a violation of the state’s wiretapping statute for the husband to surreptitiously record the telephone conversations of his wife with a third party. The court reasoned that the ‘right of privacy extends within the confines of the marital home’ and that the act of recording a spouse’s telephone conversations constitutes a ‘severe invasion of privacy in a most egregious fashion.’ The court awarded the wife $10,000.00 in compensatory damages, $50,000.00 in punitive damages, as well as $5,000.00 in attorney fees.
A spouse in a divorce action whose privacy was violated can file a civil action against the offending spouse on the grounds of invasion of privacy, which is a common-law tort in New Jersey. These types of claims, known as Tevis claims, are consolidated with the divorce matter and tried together. If the invasion of privacy claim is substantiated, then the offending spouse could be subject to substantial monetary damages, which could be collected by an offset against the marital assets. Moreover, a violation of the state’s wiretapping statute may also expose an offending spouse to criminal charges.
Source for Post Jersey Divorce & Family Law.
