What are the Rules about Spying?

California is a “no-fault” state in terms of its dissolution process. Basically, a no-fault state signifies that the Family Court cannot blame or punish a spouse for the irreparable breakdown of marriage. So, for example, the fact that one spouse had an extramarital affair has absolutely no relevance in the dissolution proceeding in California. Regardless of why the parties desire a divorce (excluding, of course, acts of domestic violence), they will each receive their fair share of the estate and visitation with minor children, all other things being equal.

Notwithstanding the fact that California is a no-fault state, many litigants in the dissolution process engage in various forms of spying to uncover otherwise private records, events, conversations, etc. for presentation to the Court.

For example, recording telephone calls and voicemail messages has become commonplace in contested custody and visitation cases. InMarriage of Balcof, (2006) 141 Cal. App. 4th 1509, the Appellate Court reviewed a trial Court’s decision to admit a nonconsensual tape recording of Wife in a custody and visitation case. During the early phase of the trial, Wife testified that she never yelled at the children, used profanities, or took steps to alienate the two minor children from Husband. However, to Wife’s surprise, Husband had a tape recording of Wife swearing in front of the children and threatening that they would be unable to see their father. Husband obtained the tape because one of his children left him a voicemail from Wife’s phone and neglected to disconnect the call. As the answering machine continued to record, Wife came in to scold the children and berate Husband. The Court allowed the evidence in to impeach Wife’s former testimony. Obviously, the Judge was unimpressed.

Spying on the other spouse can cross the line. Family Code Section 2022 specifically prohibits the use or introduction of evidence collected by eavesdropping that would constitute a violation of Penal Code Sections 631 or 632. Penal Code Section 631 prohibits the use of a wiretap to record a telephonic communication without the recorded party’s knowledge. In my experience, I have never come across a client who has the technical ability to install or operate a wiretap.

However, Penal Code Section 632 prohibits conduct that is more akin to a normal divorce case. That section prohibits the intentional recordation of a confidential communication without the consent of all parties by means of any electronic amplifying or recording device. Some litigants think it is a good idea to telephone their former spouse and trap them into making damaging admissions and statements while recording them without their knowledge. Not only is that material inadmissible in Family Court, but it can also form the basis of a criminal prosecution.

Another interesting and heated area of debate has surfaced with the concept of pretexting. Pretexting is when one person pretends to be someone he or she is not in an effort to gain otherwise confidential information for personal or professional gain. In the family law context, pretexting can take many shapes and forms. For example, if a litigant hires a private investigator to determine if the other spouse has secret bank accounts, the investigator may employ the tactic of pretexting. Typically, the investigator will pose as a government or credit agency employee to determine the existence of a bank account. Alternatively, a spouse seeking the “true” income of the other may contact his or her employer posing as a loan agent verifying the employee’s income for a mortgage.

However, federal law, directed at curbing pretext investigations, makes it a crime for any person to use false pretenses to obtain or attempt to obtain customer information from a financial institution. Attorneys using independent investigators are at risk under this law if they know the investigator will obtain or attempt to obtain personal financial information by making false, fictitious, or fraudulent statements. The penalties are steep; up to $250,000 and/or five years in prison if convicted.

Litigants often feel that some information can only be obtained from the other spouse through the use of trickery, deception, or outright spying. However, one must be aware that the results obtained from these ventures many not only be excluded from Court altogether, but may form the basis for criminal liability if not performed properly.