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 cannot 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  unguarded 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  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! 

Bryan  L.  Salamone, Esq., is  a  divorce   attorney and  the  founder  of  Bryan  L. Salamone and  Associates, P.C. which, with  10  full time divorce  and  Family Law attorneys, is Long Island's  largest  Matrimonial and  Family Law firm. Bryan  L. Salamone  and  Associates, P.C. is located  at  1145 Walt  Whitman Road, Melville, New York, and their website is www. divorcelawyerlongisland.com. If you have a divorce,  Family Law or  custody  matter  and  would  like a free  consultation, call Bryan L. Salamone and Associates, P.C. at 1.631.479.3839.

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