What to Know About Digital Spying During a Divorce

The legal, illegal, and inadvisable in New York

Just because you can, doesn’t mean you should—the old adage is particularly applicable to soon-to-be ex-spouses who have ready access to digital spying tools in their back pockets. Why not use what you have to get the upper hand in a divorce case, particularly as a means to bolster your custody chances? Well, for starters, the courts don’t always look kindly upon surveillance evidence, says family law attorney Jay Butterman of Butterman & Kahn. “It’s kind of creepy,” Butterman says. “That’ll show in court.” 

State law isn’t on the side of a would-be spy, either. “New York is a single-party state, so one person has to give consent to a recorded conversation,” Butterman says. “So that means any kind of audio surveillance where you intend to record your spouse and children—but not you—is not lawful. For example, leaving your phone on and then leaving the room to record what goes on would be unlawful.” 

There are rare situations in which Harriet Cohen of Cohen Rabin Stine Schumann would advise a client to record. “Legally recorded audio or video recordings showing a parent mistreating a child, speaking abusively to a child or neglecting a child’s needs speak volumes,” she says. “This sort of legally obtained evidence of poor parenting is useful to a mental health professional and to the court, and can also bolster the credibility of your own client and show your client’s skill at and fitness for parenting.”

But beware of how often you hit record, Cohen warns. “A parent who is constantly recording, or who records a child, may be frowned upon by the court in a custody action,” she says. “Courts like the children to be left out of the maelstrom.” 

While bugging a house or installing surveillance cameras without the other spouse’s knowledge isn’t legal, the family computer is a whole other ballgame, say both attorneys.

“I tell my clients to realize that the family computer is like an old-fashioned file cabinet,” says Cohen. “If it’s in the house and being used by multiple family members, there is no real expectation of privacy.”

That’s particularly true if one spouse knows the other’s password, or if a screen is left open in full view. “The spouse who looks at the material is not engaging in illegal activity,” she says, adding that the law may apply differently to a company computer used in the home. 

For those wary of skulking around the computer on a dirt-digging expedition, “The best practice is to subpoena the hard drive,” Butterman says. “There is a whole protocol on how to obtain digital information. And the key is it has to be relevant.” 

Sultry emails won’t cut it. “There’s no fault in New York; you don’t have to prove adultery anymore,” Butterman says. “So we don’t look into the private life unless it directly impacts children.” 

And then there’s the matter of cell phones. Digital spying goes far beyond thumbing through your spouse’s text messages.

“Spyware for cellphones is easily available and pervasive,” Cohen says. “Many were created for parents who wish to monitor their children’s activities. However, more and more, these apps are used by suspicious spouses. If your spouse can get to your cellphone, even just for a few minutes, he or she may install an app that records everything the phone does, from calls to texts to internet use to keystrokes to locations.”

And it might be legal, she says, if the person who installs it is the person who pays the phone bill.

So what are the attorneys best tips for communicating through a divorce? 

Cohen advises clients to assume they’re being spied on and to act accordingly. “I always caution a client in a divorce to be aware that he or she may be being recorded or his or her movements may be being tracked,” she says. “Every word may be being recorded and listened to—lawfully or unlawfully.”

Adds Butterman, “It depends on the level of animosity and maturity between the two. We always prefer that the spouses communicate like mature adults. I insist that my clients communicate via email, which presents a better record than text, and that they do so clearly, without rancor and with straightforward facts, like: ‘I brought X to the doctor, the diagnosis was X, I will send medicine when X visits you, please check her backpack.’” 

And if things get heated, don’t take the bait. “Very often the spouses try to play lawyer: ‘If you don’t sign the such and such by tomorrow, I’m going to …’—that kind of thing,” Butterman says. “The message we want to bring, especially where there are children involved, is that we are not in the business of burning bridges.”

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