“Spying” on your spouse: Privacy & Consequences

by | Nov 21, 2014 | Criminal Law, Family Law

Divorce and separation can be a difficult process for spouses to endure, particularly given that it uniquely requires true bravery, but also restraint.  In cases where a spouse suspects infidelity, addiction or other dishonesties, it is not uncommon they feel they want or need to get proof of their spouse’s wrongdoing.  All potential clients should heed this warning: the truth may not outweigh the risks, especially when those risks include possible state and federal criminal charges.

When considering recording telephone calls, attaching a GPS monitoring device to a vehicle, or perusing another’s email inbox, it should be stressed that even if a spouse is able to “catch” the other person in their wrongdoing, the evidence of that wrong doing may not be admissible in court if it was obtained illegally.  In general, in order to record telephone or in-person conversations, there must be consent.  Under federal wiretapping laws, at least one party to the conversation must consent.  This one party can include you, the person recording.  But, this State has gone one step further, and require “two-party consent” under our wiretapping laws.  This means that all parties must consent to the recording of the conversation.  There are some intricate caveats and nuances, but generally speaking, to discretely record a telephone conversation of other parties without their knowledge and consent will likely not be admissible in court to prove the very thing you are attempting to prove.  Furthermore, by violating these privacy and wiretapping laws you could face criminal prosecution and expose you to a civil lawsuit for damages.

Lastly, even if a spouse is successful on proving adultery, the family courts in New Hampshire are unlikely to deviate so far from an equal split in assets/debts that would make the trouble of potential criminal prosecution, worthwhile in the long run.  Reference the wiretapping and privacy laws applicable to you, for more specific information on the topic.

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