Divorce and custody proceedings can often lead to emotional, impulsive, and ill-advised actions taken in the heat of the moment. It's tempting to use your estranged spouse's words—recorded for posterity—to undermine his or her case. Your animosity may even extend to your soon-to-be ex-in-laws.

One New Jersey woman learned that giving in to the desire to “expose” an alienated husband's tactics by recording a conversation with her then-mother-in-law attempting to use it in court was a very bad idea.

Federal law—specifically the Electronic Communications Privacy Act (ECPA)—imposes penalties on anyone who intentionally:

• Intercepts, uses, or discloses any wire or oral communication by using an electronic, mechanical, or other device, or
• Without authority, accesses a wire or electronic communication while it is in storage, which can include installing software to intercept an opposing party's emails or DMs.

Federal vs. State Laws

On a federal level, it's necessary only for one of the parties to be aware of a recording. Third-party recordings are not only inadmissible as evidence but can be prosecuted under the Act.

However, in certain states, both parties must be aware of the recording. These are:

• California
• Delaware
• Florida
• Illinois
• Maryland
• Massachusetts
• Montana
• Nevada
• New Hampshire
• Pennsylvania
• Washington State

Location, Location, Location

Holly Finley was in her home state of New Jersey when she recorded a FaceTime conversation between her and her then-mother-in-law, who learned of the digital eavesdropping when Finley and her attorneys submitted the material to a court in New York state. The proposed evidence was part of a divorce and child custody case.

Because the mother-in-law is a resident of Florida, a state that prohibits recording without the consent of both parties, the Sumpter County (Florida) Sheriff's Office brought charges against Finley, who is accused of a felony in violating a Florida state statute regarding illegal interception of communication. A conviction could result in imprisonment for up to five years, as well as financial penalties in the form of damages.

Making a digital record of conversations without the other party's knowledge and providing it to a court as evidence, while admissible and may be useful in certain state courts, is not something a party in a dispute should do without consulting a lawyer with knowledge of how admissibility—and more important, legality—varies from state to state.

Consent Plays a Role

Note the ECPA prohibits unauthorized interception and storage. If, for example, an individual shares with his or her spouse their email passwords and allows them to use them on a routine basis, that is a surrounding circumstance regarding consent.

Consent in these cases is extremely nuanced, however, dealing with issues including expectations of privacy and whether or not the interception of communication was intentional.

You Need Seasoned Legal Guidance

To avoid civil and criminal consequences, it's essential you have an attorney who understands the complexities of not only federal statutes but also in state jurisdictions, which can vary in substantive ways.

Attorney Joseph D. Lento and the Lento Law Firm assist clients who are experiencing divorce and custody disputes, handling complicated issues, including legal and illegal eavesdropping. He can help you do things in an effective and above-board way.

If you want help building a legal case in your divorce, call attorney Joseph D. Lento and his team today at 888-535-3686.