People often store highly sensitive information on computers, and it can be tempting to snoop around to use this information in divorce situations where emotions run high. In most cases, obtaining electronic evidence without permission can lead to detrimental consequences for you and your lawyer.
Uses of Illegally Obtained Evidence
In some divorce cases, one spouse could suspect the other is not fully disclosing all necessary information to determine the proper division of assets, custody agreement or child and spousal support. Perhaps the other party was engaged in an extramarital affair or had less than desirable parenting methods. Maybe they are holding a secret bank account that was not disclosed. In some cases, spouses might even lie about disability to get more out of their soon-to-be ex.
When you suspect there is information in your spouse’s computer or phone that could work in your favor, you may feel tempted to sneak in and get it yourself. This, however, is highly illegal and information you obtain this way cannot be used in court.
Methods for Illegally Obtaining Evidence
Because it can be so accessible, many don’t realize they won’t be able to use what they find. Often, individuals will simply log on to their spouse’s account to find relevant information that could benefit them in the divorce. This could be information such as private bank statements or communication with others about the state of the marriage. Some extra curious spouses might go to extreme measures by using tracking software to collect data about every activity their partner performed on the computer. Listening in on private conversations is also an illegal way to obtain evidence.
Consequences to Illegally Obtained Evidence
If you use evidence that you found illegally, it could result in a new lawsuit and potential jail time. It is a very serious crime and should never be an option. Always disclose your methods of acquiring information with your family law attorney to avoid terrible circumstances. Attorneys will know the proper methods for obtaining evidence and will avoid using what you may have found illegally.
Exceptions Where Illegally Obtained Evidence Is Permitted
In California, there are two exceptions that allow you to submit illegally obtained evidence to the court. First, if the evidence comes from another source, it is okay to use. For example, if you find sensitive information on your spouse’s computer by hacking into a private account but also find that information legally, it is okay to use. The courts also allow illegally obtained evidence if your spouse waives the right to use it. If your spouse’s testimony directly contradicts information you found illegally, the courts sometimes permit it. Consult with your attorney before taking any immediate action, and always explain where you obtained any computer or digital evidence.
How to Legally Obtain Sensitive Information
If you believe your spouse is withholding information pertinent to the divorce proceedings, you can file a motion requesting account passwords or a forensic examination of your spouse’s hard drive. This could provide insight into relations the spouse wanted to hide, and your attorney can use it as legal evidence. Your lawyer could ask the courts to subpoena certain information from phones, tablets or computers. The courts can obtain all other information you or your spouse do not voluntarily offer through the formal discovery process. Face-to-face questioning, or depositions, require that the person being questioned provide truthful responses under oath. Interrogatories are like depositions but occur in written format. Courts also allow formal requests for evidence and admission.
It is not wise to count on the chance that one of the exceptions could apply to your case. Consult with your San Diego divorce attorney right away when you suspect your spouse is hiding something to find the information legally. If you have already found information using illegal methods, tell your attorney immediately.