Electronic Evidence in Family Law

While some divorces can go smoothly, others can incite aggressive and combative behavior. Unfortunately, sometimes one or both of the parties involved in a divorce will stop at nothing to win. This heated divorce process is particularly common in states that still use an at-fault divorce system. In an at-fault divorce, one party must prove some indiscretion – like infidelity - by the other in order to succeed in having the divorce granted. Thankfully for couples in Waxhaw and the rest of North Carolina, divorce law operates on a no-fault system. In other words, if a couple wishes to divorce from each other, they only need to show a North Carolina family law court that they have been physically separated from more than one year from one another and at least one spouse intends to sever the marriage relationship.

That being said, while fault need not be proven in North Carolina divorce cases, other aspects of divorce – such as alienation of affection, alimony, and criminal conversation – are an entirely different matter. Parties may still seek less-than-ethical methods of obtaining information or leveraging it over their soon-to-be ex-spouse. No matter what the reason for the not-so-friendly methods of seeking information, it is vital to be aware of how illegally obtained evidence can not only hurt your divorce case but potentially expose you to criminal liability.

There is a general principle under both civil and criminal law that a party is unable to use evidence at trial that was obtained illegally. The term used for this concept is “fruit of the poisonous tree” and refers to any evidence obtained by way of an illegal search, making the evidence inadmissible in court. This concept commonly arises in a divorce case when dealing with electronic evidence – namely, social media or email or financial accounts. Examples of a spouse illegally accessing evidence in a Waxhaw divorce case include logging into the other spouse’s email or social media account without their consent or hacking into their spouse’s accounts by the guessing of passwords, or by making use of keystroke tracking software. This latter example, of course, is likely to result in criminal charges or civil penalties for the offender.

Whether or not a North Carolina court will decide if the electronic evidence obtained during a divorce was illegal or not depends on numerous factors. If a computer or other electronic device was previously shared by spouses, the court may err on the side of giving either spouse the right to access the information that is stored on that electronic device. This is particularly true if one spouse did not specifically state that the other is not authorized to have this information in the divorce proceedings. The reasoning behind this concept is that the expectation of privacy regarding information decreases when more than one person has authorized access to that information. That being said, if one party rescinds – or takes back – the other spouse’s right to access the electronic device, this can revoke that person’s authorized access from that point forward.

Under North Carolina Law, it is a Class H felony to use, procure, or intercept any oral, wire, or electronic communication without the authorized consent of at least one party involved with the communication. In some states across the country, eavesdropping and wiretapping laws require consent from both parties involved in the communication. Additionally, electronic communication laws place a duty on both parties involved in a civil case to preserve potentially relevant evidence – electronic or otherwise. This duty is also imposed on parties to a Waxhaw divorce proceeding. Should it be discovered that one party destroyed, tampered, or hid evidence, this can have a serious negative effect on their case.

There are other options when it comes to discovering, obtaining, preserving, and protecting electronic evidence in a family law matter. For example, a knowledgeable family law attorney may advise that you hire a forensic expert that specializes in computers and other electronic devices to help recover deleted or lost evidence – and recover this electronic evidence the legal way. Indeed, a skilled computer forensic expert can safely retrieve electronic files; he or she can also testify in court on your behalf, if necessary and appropriate in your Waxhaw family law case.

Divorce is a complicated and stressful process; do not expose yourself to further criminal or civil liability by illegally obtaining evidence. This will only make matters worse. Instead, contact the experienced family law attorneys at Arnold & Smith, PLLC. Our multi-practice civil and criminal litigation firm have the experience to handle matters that intersect in the areas of family law and criminal law. Contact us today for an initial consultation about your case with one of our experienced attorneys.