If preparing to file for divorce or in the midst of a divorce action, the following conduct should absolutely be avoided. This list is by no means exhaustive.
● Wiretapping. You may suspect that your spouse is committing adultery, but do not attempt to prove it by clandestinely recording conversations between him/her and the suspected paramour. While Georgia permits individuals to record their own conversations with others(1), the law precludes a person from recording conversations between others without their knowledge and consent.(2) Violation of this law constitutes a felony punishable by imprisonment for 1 – 5 years and/or a fine for up to $10,000(3), and, to boot, the unlawfully-obtained recordings will remain unusable in the divorce proceedings for any purpose except to prove violation of the law.(4)
● Computer Crimes. If you think your spouse is cheating on you, or you believe your spouse has hidden assets, do not attempt to prove your belief by copying e-mails, text messages, or files on his/her cell phone, computer, or other electronic device, without permission. Georgia’s computer theft law precludes a person from using an electronic device “with knowledge that such use is without authority and with the intention of … taking or appropriating any property of another, whether or not with the intention of depriving the owner of possession.”(5) Georgia’s computer trespass law prohibits a person from using an electronic device “with knowledge that such use is without authority and with the intention of … in any way removing, either temporarily or permanently, any … data” from an electronic device.(6) Georgia’s computer invasion of privacy law precludes a person from using an electronic device “with the intention of examining any employment, medical, salary, credit, or any other financial or personal data relating to any other person with knowledge that such examination is without authority…”(7) Violation of either law subjects the wrongdoer both to civil damages, including lost profits and victim expenditures, and to criminal penalties consisting of a fine up to $50,000 and/or imprisonment of up to 15 years.(8) Similarly, even if you happen to know your spouse’s passwords to his email accounts, do not access those accounts online to search for incriminating evidence. Doing so could violate federal law which prohibits a person from intentionally accessing “without authorization a facility through which an electronic communication service is provided” or intentionally exceeding “an authorization to access that facility” and thereby obtaining “access to a wire or electronic communication while it is in electronic storage in such system…”(9) Violation of that law subjects the offender to a fine and/or imprisonment for up to 10 years.(10)
● Fraudulent Transfers. If you want to preserve a share of marital assets from dissipation by your spouse, or fear you’ll be cheated out of a fair share of marital property in the divorce, do not transfer marital assets to a friend or family member to hold for you until after the divorce. Georgia’s Uniform Voidable Transactions Act in part precludes a debtor from making a transfer of assets “[w]ith actual intent to hinder, delay, or defraud any creditor of the debtor…”(11) The fact that the transferred marital assets otherwise would be subject to equitable division between you and your spouse in the divorce action should create the requisite debtor-creditor relationship that would make voidable your transfer of assets, without receiving reasonable payment for those assets.(12) Violation of that statute typically will result in the reversal (avoidance) of the fraudulent conveyance and also may subject the violator to punitive damages.(13)
(1) O.C.G.A. § 16-11-66(a).
(2) O.C.G.A. § 16-11-62(1).
(3) O.C.G.A. § 16-11-69.
(4) O.C.G.A. § 16-11-67; see also Ransom v. Ransom, 253 Ga. 656, 659(3), 324 S.E.2d 437 (1985) (precluding use of illegally obtained tape recordings for impeachment purposes).
(5) O.C.G.A. § 16-9-93(a)(1).
(6) O.C.G.A. § 16-9-93(b)(1).
(7) O.C.G.A. § 16-9-93(c).
(8) O.C.G.A. §§ 16-9-93(g)(1) and (h)(1).
(9) 18 U.S.C. § 2701(a).
(10) 18 U.S.C. § 2701(b).
(11) O.C.G.A. § 18-2-74(a)(1).
(12) O.C.G.A. § 18-2-71 (3), (4) & (6). See also Armour v. Holcombe, 288 Ga. 50, 52(1), 701 S.E.2d 169 (2010); and Harrison v. Harrison, 228 Ga. 126, 184 S.E.2d 147 (1971).
(13) O.C.G.A. § 18-2-77(a)(1); Interfinancial Midtown, Inc. v. Choate Constr. Co., A17A1160 (1) (Ga. Ct. App., October 20, 2017).