Electronic Evidence in Family Law

For some couples divorce can spur combative and aggressive behavior, sometimes one or both parties will stop at nothing to achieve a favorable outcome. This is especially true in states that still use an at-fault divorce system where one party needs to prove some type of indiscretion by the other, such as infidelity.

Fortunately for North Carolinians, divorce law here operates on a no-fault basis. This means that a couple that wishes to divorce only needs to prove that they have been physically separated for over one (1) year with at least one spouse intending to permanently cease the marital relationship.

However, even though fault does not have to be proven in divorce cases here, alimony, alienation of affection and criminal conversation cases are another matter. Parties can still stoop to some less-than-legal ways to obtain leverage or information about their to-be former spouse. Maybe one spouse thinks the other is illegally hiding assets in an attempt to change the property distribution or spousal support upon divorce. Perhaps the party is convinced of the other’s infidelity and just personally wants to get their hands on the truth. Regardless of the reason, it is important to stay cognizant of the ways in which illegally obtained evidence can hurt your divorce case and even expoxse you to criminal liability.

Fruit of the Poisonous Tree

In both civil and criminal law, a party cannot use evidence at trial that was obtained illegally. Anything obtained through an illegal search is considered a “fruit of the poisonous tree” and is not admissible. This most commonly comes into play in divorce cases with regards to electronic evidence, namely that involving email and social media or financial accounts. Common examples of a spouse illegally accessing evidence in a divorce case include cases where one spouse:

• Logs into their spouse’s email or social media account without authorization
• Hacks into their spouse’s account by guessing their password or downloading a keystrokes software that tracks passwords

Authorized Access

Whether or not the courts will find such obtained electronic evidence illegal depends on a number of factors. If a computer was historically shared between spouses, this can err on the side of giving either spouse the right to access information on that computer’s hard drive if one spouse did not specify otherwise in the divorce proceedings. This is because the expectation of privacy is decreased whenever more than one person has authorized access.

However, if one spouse rescinds the other spouse’s right access to a device, this can revoke their authorization to use it. Downloading tracking software or actually hacking into a person’s email by guessing their password is even more likely to result in related criminal charges or civil penalties.

Criminal Charges

• N.C.G.S. 15A-287 makes it a Class H felony to intercept, use or procure any oral, wire or electronic communication without the consent of at least one of the parties to the communication. Some state wiretapping and eavesdropping laws require consent from both parties.

Electronic stored communications laws also impose duty on both parties to a civil case such as divorce to preserve potentially relevant evidence, electronic and otherwise. If one party is found to have destroyed or hidden evidence (such as deleting files), this can have a serious adverse impact on their case.

So What are my Other Options?

You should have an experienced family law attorney on your side who is familiar with the unique circumstances of your case and the applicable laws that apply. Divorce is already an extremely complicated and strenuous process, and exposing yourself to further criminal or civil liability can only make it worse.

Your attorney may advise that you hire a computer forensic expert that can help recover deleted or lost email files if they can do so legally. A forensic expert can safely retrieve files and testify in court on your behalf if appropriate.

Arnold & Smith, PLLC is a multi-practice civil and criminal law litigation firm in Charlotte, Mooresville, and now Monroe North Carolina. Our dedicated family law attorneys also have at their disposal the experience and resources of our criminal defense attorneys, one of whom is a former prosecutor. If you are facing a divorce, it is critical that you speak with a skilled family law attorney who can navigate you through the exhausting process and defend your interests. Contact us today for an initial consultation about your case with one of our attorneys.