Cell Phones and Recording Devices in Divorce: Are You Living with the Enemy?
Daily news reports confirm how celebrities, or public figures, have been taped or recorded surreptitiously. The shocking and repeated rants of Mel Gibson recorded by his paramour and lover have made news and shocked people throughout the world. However, the series of five to eight rants is not shocking, nor is it even "remarkable" to a seasoned divorce attorney.
Our firm has handled thousands of divorces and Family Law cases. Our firm is located in Melville and offers free consultations on selected matters.
Over the last fifteen years, we have seen a dramatic increase in the amount of audio and video taping by spouses and lovers. In a divorce, these tapes may or may not be admissible. In Court. It should be noted that they are often done in a calculating manner designed to portray the person being taped as a "monster", "abuser" or neglectful parent.
As divorce practitioners, we say that matrimonial law is different from criminal law. In criminal law you see the worst people ("accused criminals") presented at their very best. They are dressed in suits, they are respectful to the system and they are on their best behavior. In divorce/matrimonial law, you see the very opposite. You see the most respected community members; business leaders; and people of high moral character descend into their very worst. Their mannerisms, their dress and their actions and words show a side of them that is uglier than anyone has ever seen. It is at that point that the person they love the most, the one they live with, becomes the enemy if he or she is holding a cell phone; or recording device.
Today’s cell phones include video and voice recording. Everyone is holding a cell phone from time to time during the day, and it is never really clear whether it is recording or not. Recent celebrity cases, as well as political figures, have brought light to this area. There have been celebrities and political figures in the news who have been taped months before a planned divorce. Prior to the mid-nineties, financial planning was needed for a divorce. People would move accounts or otherwise regroup their assets in preparation for starting a divorce. Today, the more sophisticated information age dictates that a spouse may be seeking to amass digital images and voice recordings of your very worst months (if not years) before serving divorce papers.
An action for cruel and inhuman treatment in the State of New York goes back five (5) years. A person can record five (5) years of cruel and inhuman treatment; verbal and emotional abuse and use it against you in a Court of law. You can be certain of only one thing: the images and sounds that will be shown to the Court and to the public will be images and sounds that are not truly indicative of your overall behavior or your character as a person. It will portray you at your worst during a tirade that can not be proven to be out of context without the assistance of significant witnesses.
Imagine, if you will, the person you love the most taping you at your very worst moments. It happens, and as a divorce practitioner who has handled over 10,000 divorce cases, I assure you it happens (frequently).
In the mid-nineties, our firm began to monitor how technology was affecting marriages and divorce in a manner that could only be described as revolutionary. As technology has transformed people’s lives, and business, it has also transformed relationships and divorce. It is not the internet that has caused more divorces than anything else, it was the cell phone. Prior to the nineties, it was very rare for a male or a female to have a social network unless on a face to face basis. People did not have separate phone numbers with which to carry on relationships outside of their marriage and their home. Furthermore, there was a lot less chatter and distractions to a marriage relationship. Most people have one or two phones in their homes and these were land lines. When the phone rang, both spouses knew it was ringing and when one spouse answered, the other asked who was it? There were fewer distractions and secreting calls was difficult to say the least. When a man or woman attempted to give a phone number to someone that was not a land line, it was usually a beeper or an office line, and those were also restrictive in their ability to distract the man or woman from the marital relationship.
Since approximately 1996, the cell phone has been transformed to an instant message tool; text tool; picture viewer and sender; together with Blackberry buddies; Facebook and MySpace as applications. Indeed, the current cell phone in its regular form, has browsing capability whereby a person could be married to another person and be in the same room with that person, while carrying on several chats in singles “cyber" rooms. People can carry on separate lives and can carry on conversations, romances, friendships and be distracted and prevented from focusing on their marriages.
Beginning in 1997, the Courts became inundated with cases prompted by the unsophisticated use of cell phones. For example, I remember five cases in one day, whereby husbands or wives left cell phones un-guarded at their home for their spouse to review call logs and histories. This occurred when the internet came in the nineties when the browsing history was used and reviewed. After the millennium, there was an influx of cases in connection with keystroke recorders and spyware. A spouse could come home from work and review all of the words that were typed at the home computer all day, what websites were visited, and whether there were chats and the sharing of pictures or audio.
When a tape of Rodney King’s beating surfaced, it was unusual to have anything on videotape. In fact, it was the videotape of the beating that made the case so dramatic. From that point, to the present, we now have tapes and videotapes of any imaginable conduct. As an experienced divorce practitioner, I assure you that in the privacy of the home and in the confines of what is thought to be a trusting and loving marital relationship, people are now taping each other so that they can use those tapes at a later date. When listening to the horrible and enraged comments made by Mel Gibson in the most recent tapes that have been made public, it has become more and more obvious that when you are acting at your very worst; when you are saying the most horrible things that you can imagine; and when you are in your own home surrounded by someone that is in an intimate relationship with you, you may be on tape.
Is there hope for marriage in the age of technology? Yes. As our workplaces are being recorded; as the ATM machines and traffic cameras record all of our actions; and as every single person who is holding a cell phone armed with a camera and a recording device, our actions are scrutinized throughout the United States. When out in public, any individual who displays aggression or poor manners can be taped by anyone near them. It is only at home that people believe they will be safe, and people will retreat to their homes and to the people that love them for the sanctuary that they deserve.
As divorce practitioners, we have become jaded. It is only the people whose trust is already betrayed, whose privacy has been violated that come to our offices. For the most part, the home will remain a sanctuary from the prying eyes of the spider web of technology. To those who have doubts about their marriage, or the fidelity of their spouses, take this advice from the founder and owner of Long Island’s largest divorce law firm: Stay on your best behavior…….You are being taped!!!!