By: John C. Whitbeck
John C. Whitbeck, Jr. is the founder of WhitbeckBennett. His practice focuses on family law, special education law, and mental health law. He regularly practices in several jurisdictions in the Northern Virginia area. He has also been certified as an expert witness in litigation. To Learn more about Mr. Whitbeck, click here.
Is Electronic Data Obtained Without A Spouse’s Permission Admissible in a Divorce or Custody Case
In the midst of a contentious divorce or custody battle, many individuals obtain emails or text messages of their spouse and want to use them as evidence in their court proceedings. However, this issue can get very complicated. Virginia Code §19.2-62 makes it a felony in Virginia to intentionally intercept any wire, electronic, or oral communication. There are several exceptions, such as if you are a party to the communication or if one of the parties of the communication had given prior consent to such interception. Another exception is if the communication is easily accessible to the general public. Speaking with an experienced divorce attorney will be extremely valuable in understanding the exceptions and proper methods for obtaining evidence in situations like this.
Suppose one spouse obtains access to communication of their spouse without consent and they are not a party to the communication, i.e., a conversation to a 3rd party. In that case, they may not use the information even if it is relevant, such as proving adultery. Typically, any information that is obtained illegally is not admissible in court. Therefore, if a party wanted to admit a text between their spouse and a 3rd party, the only legal way to admit that would be through a subpoena to the cell phone provider. Unfortunately, many cell phone providers did not retain text messages for any length of time.
Furthermore, attorneys have ethical considerations that come into play. The Rules of Professional Conduct prevent attorneys from advising clients to use evidence that was illegally obtained. A lawyer is precluded from advising a client to engage in illegal or fraudulent conduct. In Marsh v. Curran, an attorney was sued after admitting evidence that was alleged to have been intercepted electronic communication. 262 F. Supp. 320 (4th Circuit 2019).
The electronic age of emails and text messages brings the potential for more evidence but also adds a complication to the practice of law, especially in areas of family law. Always make sure to disclose the methods of obtaining information with your family law attorney to avoid more complicated situations.
If you are unsure of the best option to move forward for your divorce, please call WhitbeckBennett so we can help you avoid encountering any legal consequences with illegally obtained evidence and handle your case appropriately.
To learn more about divorce, visit our Divorce Law page.