California is a "no fault" state. A "no fault" state signifies that Family Court cannot blame or punish a spouse for the breakdown of marriage. So, for example, the fact that one spouse had an extramarital affair has absolutely no relevance in the dissolution proceeding. Regardless of why the litigants desire a divorce (excluding, of course, acts of domestic violence), they will each receive their fair share of the estate and visitation with any minor children, all other things being equal. However, notwithstanding the fact that California is a "no fault" state, many litigants in the dissolution process engage in various forms of "spying" to uncover private records, events, conversations, etc. for presentation to the Court.
The Voicemail Exception
Recording telephone calls and voicemail messages has become commonplace in heated custody and visitation cases. In Marriage of Balcof, (2006) 141 Cal.App.4th 1509, the Appellate Court reviewed a trial Court's decision to admit a nonconsensual tape recording of mother in a custody and visitation case. During the early phase of the trial, wife testified that she never yelled at the children, used profanities or took steps to alienate the two minor children from husband. However, to wife's surprise, husband had a tape recording of wife swearing in front of the children and threatening that they would be unable to see their dad. Husband obtained the tape because one of his children left him a voicemail from wife's phone, and neglected to disconnect the call. As the answering machine continued to record, wife came in to scold the children and berate husband. The Court allowed the evidence in to impeach wife's former testimony.
Conduct that Crosses the Line
When does spying on the other spouse cross the line in a Family Law case? Family Code Section 2022 specifically prohibits the use or introduction of evidence collected by eavesdropping that would constitute a violation of Penal Code Sections 631 or 632. Penal Code Section 631 prohibits the use of a wiretap to record a telephonic communication without the recorded party's knowledge. I have never come across a client who has the technical ability to install or operate a wiretap.
However, Penal Code Section 632 prohibits conduct that is more akin to a normal Family case. That section prohibits the recording a confidential communication without the informed consent of all parties. I have been involved with clients in the past who think it a good idea to surreptitiously record phone conversations with their former spouse to "trap" them into making dangerous admissions and statements. Not only is that material inadmissible in Family Court, but it is also a criminal act.
Another interesting and heated area of debate has surfaced with the concept of "pretexting." Pretexting is when one person pretends to be someone he or she is not in an effort to gain otherwise confidential information for personal or professional gain. In the Family Law context, pretexting can take many shapes and forms. For example, if a litigant hires a private investigator to determine if the other spouse has secret bank accounts "off shore," the investigator may employ the tactic of pretexting. Typically the investigator will pose as a government or credit agency employee to determine the existence of a bank account. Alternatively, a spouse seeking the "true" income of the other may contact his or her employer posing as a loan agent verifying the employee's income for a mortgage.
Potential Punishment for Pre-Texting
However, federal law, directed at curbing so-called "pretext investigations," makes it a crime for any person to use false pretenses to obtain or attempt to obtain customer information from a financial institution. Attorneys using independent investigators are at risk under this law if they know the investigator will obtain or attempt to obtain personal financial information by making false, fictitious, or fraudulent' statements. The penalties are steep; up to $250,000 and/or five years in prison if convicted.
The information and opinions expressed above are not intended to be relied upon as legal advice, or to establish an attorney/client relationship. If you are involved in a Family Law matter, you should seek competent counsel.