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September 27, 2012

Privacy Evaporates in a Matrimonial Litigation

Category: General — admin @ 10:25 am

Whatever you text, whatever you say on Facebook, whatever you e-mail, whatever you tell your therapist:  about your spouse, your kids, your financial affairs, your emotional state, it can all become fair game in a matrimonial action.  What you thought was a private communication might turn out not to be.  If you are involved in a contested custody battle and the other side wants to raise issues about your psychological health, they can apply for a Court Order for the release of your therapist records.  What you e-mail and then delete is never really deleted as long as the physical computer can be secured.  I have hired experts to scrupulously go through every piece of memory on a computer, and I have found wildly inappropriate communications that a party thought were buried forever.  New York no longer requires grounds like adultery or cruel and inhuman treatment for a divorce, but such behaviors may not look too favorably for a spouse trying to convince a Court that he or she will be a good custodial parent.  Texting is a little trickier in that the ability to retrieve communications from the service provider has a limited window.  Yet the phones themselves record and store and have ever increasing memories as newer versions come out.


If these things alone do not make you self-conscious, I have been involved in litigations where recordings all of a sudden show up, voice recordings, even videos, so easily secured nowadays.  As a general rule, as long as one of the parties to the communications is amenable to it being recorded, there is no illegality.  Spouses bait the other with questions and record the answers, record angry tirades at home with the family.


Using your computer at work for your personal e-mail, there is no expectation of privacy.  Subpoenas can be issued to those to whom you have communications, communications actually secured from them or from their computers.  Politicians and celebrities are routinely making news for inappropriate communications sent out in the haphazard form as if no one will ever see or hear about it.  When you are involved in a matrimonial matter, you should act as though everything you say, other than to your attorney, can be up for grabs.


Witness for the Prosecution:  yourself—not if you are careful.