The world of James Bond gadgetry is on a collision course with the world of divorce. It is happening faster than any divorce attorneys could possibly have anticipated and is catching many ill-prepared to deal with clients who are more well “armed” than the aforementioned Mr. Bond or even Jason Bourne.

The spy shop has become the new first stop for many preparing for what they believe will be nasty divorce and custody litigation. Much of this shopping, unfortunatelytakes place before meeting with divorce or matrimonial attorneys, who may be able to dissuade the use of some of these gadgets for spying or other questionable, if not illegal conduct. Clients often, also are failing to avail themselves of real professional in the art of surveillance, who may be able to provide more effective evidence, because of their experience in dealing with these situations.

In a society where “smart” cellphones which can do remarkable tricks compared to their “dumb” ancestors of only two or three years ago, perhaps attorneys should be doing all they can to better educate themselves that is out there and is it legal or illegal to use evidence gained from such technology.

Here is a brief overview of what types of gadgets are readily available and what some courts around the country are saying about the use of these gadgets in divorce and custody proceedings.

Easily available and for costs that were completely unthought of just a year or two ago, are items such as: cell phone trackers, GPS devices small enough to be hidden in vehicles, small hidden cameras that can placed into items such as children’s toys or worn attached to eyeglasses. There are also microphones which can record for days and can be sewn into clothing. Firms like SpyTechInc.com, located in New York City, provide a dizzying array of low-priced gadgets as part of their online catalogue. A glance at their website reveals items such as an alarm clock with a built-in motion activated hidden camera that will provide over forty hours of high quality video for just over two hundred dollars. Then there is a one hundred dollar spy watch that takes high definition video with its built-in night vision camera. There are also items known as cellphone “Recons” which, for under two hundred dollars, can monitor any Android phones, Blackberries and even the most recent iPhone to record all text messages sent and received, all emails sent and received as well as logging all incoming and outgoing calls. For one hundred dollars you can get a pen that will record all audio within a thirty foot radius, works on voice activation and has a long battery life. The list goes on and on and the technology is truly mind-blowing.

The law in all states, including Pennsylvania, is fairly unsettled and will need to be rapidly developed. State and Federal Courts are beginning to weigh in. In a recent Minnesota case, a husband, Danny Lee Hormann believed his wife was having an affair. He became obsessed with trying to catch her. He installed spying software on her cellphone and the family computer, and installed a GPS tracking device on her car. Wife thought it was odd that Hormann seemed to always know exactly where she had been. On one occasion, he showed up at a lakeside cabin that Hormann previously had no knowledge of and attacked her acquaintance. Wife eventually took the car to be repaired and the repairman found the hidden GPS device and removed it.

Hormann was convicted of stalking his wife and found in violation of a Minnesota statute which bars surreptitious electronic monitoring of another individual with a tracking device. The appeals court upheld the stalking conviction, but tossed out the additional conviction based upon the fact that Husband also owned the car wife was using and therefore, that Court found he had a legal right to place the tracking device on their car.

A New Jersey (Gloucester County) Superior Court judge came to the same conclusion, but for different reasoning and was upheld by the Appellate division. In this case a New Jersey wife believed her husband was having an affair, and placed a GPS tracking device in Husband’s car, which they jointly owned. Husband sued Wife for invasion of privacy. The Judge in that case said that wife did not violate husband’s privacy. The New Jersey Appellate court stated that the GPS device did nothing that a private investigator would not have been able to accomplish by just normal surveillance of husband, and therefore, husband had no right to an expectation of privacy under those circumstances.

However, in a 2011 Nebraska case, a mother who placed a listening device in her daughter’s teddy bear, which the child was instructed to bring to all custody visits with her father, was found guilty of violation of the Federal Wiretap Act.

In fact, Five of the thirteen U.S. Circuit Courts have found that the Federal Wiretap Act prohibits electronic surveillance of any type within marriage by the other spouse. So far two have found that the law does not prohibit spying on your spouse. The others have yet to weigh in.

As indicated earlier, the current state of the law in Pennsylvania is not completely developed. The Pennsylvania Wiretap Act applies to emailand text communications. Specifically, Section 5703 indicates that it is illegal to intercept any...electronic or oral communications. Use of the contents of what was intercepted is also illegal. But if these emails, text messages or other social media interactions are stored on a computer or other electronic storage device, and then retrieved, possibly through questionable means , they may still be admitted into evidence.

In 2012, Pennsylvania amended the discovery rules to deal with electronically stored information, without codifying any existing case law from other jurisdictions that would ban electronically stored evidence which was gained by illegal means. Although, PA. R.C. P 4011, which has stood for the proposition that no discovery would be allowed which was sought in bad faith or would cause unreasonable annoyance, embarrassment, oppression, burden or expenses or is beyond what is permitted by other discovery rules, or would lead to disclosure of mediation communications or documents, it does not extend any additional protections regarding electronically stored data which would otherwise be admissible. The explanatory comment makes it clear there was no intention to include any of the Federal jurisprudence that deals with electronically stored data or documents.

Many of the companies who sell key-logging software, cell phone trackers andstealthy GPS devices advise that sales are soaring. Research indicates that in 2011, sales of these devices were up almost eighty percent from the previous year. A February2012 report from the American Academy of Matrimonial Lawyers indicated that ninety-two percent of their members had reported an increase in evidence from text messages, emails, call histories and GPS location information.

Clearly technology is now changing the landscape of the many divorce and custody actions in Pennsylvania, New Jersey and nationwide. Where parties once spent thousands of dollars on surveillance, of the type often provided by private investigation firms, many are now choosing cheaper and more easily available technology of the type described in this article. Divorce and matrimonial attorneys must be prepared to answer questions about the legality of the use of this new technology to the extent they are currently able and ensure their clients understand that the evidence it produces may or may not be useable in their divorce or custody action.

Christian V. Badali is the CEO and Attorney at Law at Badali Solutions LLC. (badalisolutions.com) He has practiced family law in Pennsylvania and New Jersey for almost twenty years.

Divorce and the Affordable Care Act

On October 1, 2013 Americans without health insurance were for the first time able to buy private health insurance by choosing among different levels of plans through the Affordable Care Act sometimes referred to as “Obamacare.” Specifically, beginning on January 1, 2014, persons with pre-existing health conditions will not be denied coverage as health insurance providers will no longer be permitted to refuse to insure an individual or even to charge insureds with pre-existing conditions higher premiums for health insurance coverage. The question is how do these radical changes to health care law in the United States affect its’ citizens who are currently going through the divorce process or are recently divorced.

According to a study from 2012 done by the University of Michigan, approximately 115,000 women lose their private health insurance each year as a result of divorce. The study also found that most do not get health insurance for a number of reasons quickly thereafter. It is believed that as many as one-quarter of all divorcing women who are no longer covered by their former husband’s health coverage may remain without coverage for at least six months. Many of these woman who are not getting insurance or are remaining uninsured did not have jobs outside the home or work at positions where health insurance is not offered. Others are able to get continuing coverage through COBRA plans offered by their ex-spouses employers, but often cannot afford the cost and the duration of this coverage is limited, sometimes only for thirty-six months.

A trend that has become prevalent in divorce is that is that older Americans, especially those over fifty years of age are getting divorced much more frequently than they had historically. Once again, many women in this age group had been at a tremendous disadvantage to their spouses, who more often had been working at positions for a longer number of years. Often these women are the dependent spouses, who are forced to find affordable coverage, and are even more vulnerable because they may suffer from pre-existing conditions that make it hard or even impossible to get health coverage after divorce under the previous state of health insurance in the United States.

Many times, women in these situations, either forego divorce all together or at least wait until they have reached an age where they will be able to receive health insurance coverage under Medicare.

Once fully implemented, The Affordable Care Act will reduce the high cost of health insurance to divorcing parties who do not have or will not be otherwise eligible for health insurance coverage through employers. Coverage will also now be fully accessible for everyone, even those who have suffered pre-existing conditions that might have otherwise prevented them from getting health insurance post-divorce. Suddenly, parties, especially women considering divorce, but holding off on proceeding may now be able to proceed with their divorce, without being concerned that they may not be able to get health insurance or may be forced to pay an exorbitant amount for continuing health insurance coverage.

Another area of divorce law that will be affected by the Affordable Care Act is alimony. As is the case now, health care costs for dependent spouses often prevent cases from settling or at least often can cause the divorce to last much longer than would otherwise be necessary. Now having health insurance readily available andthe cost of such insurance a more known quantity under the Affordable Care Act, will make it easier to figure out what if anything must be tacked onto the alimony payments to cover this cost. Because these health insurance costs will be easily calculable and likely cost much less than the cost of health insurance would have been before the act, this could lead to many more cases settling and those that do to settle much more quickly. Divorce and matrimonial attorneys will have more tools in their arsenal available to make reasonable and agreeable proposals to their counterparts in these divorce cases and will often not need to wait for the Court to weigh in on whether or not their clients may need to contribute to a dependent spouses ongoing health insurance coverage.

Of course the Affordable Care Act will likely also lead to more disputes over the different levels of coverage available (Platinum, Gold, Silver and Bronze) and what level the payor spouse should be required to pay for on behalf of the dependent spouse. One of the questions Courts may be expected to weigh in upon, and possibly soon, is whether the dependent spouse can and should expect to be able to purchase substantially similar health insurance coverage than they had when they were married or will they be forced to settle for the lowest level coverage (bronze coverage) under the Affordable Care Act.

Another area where divorce and matrimonial attorneys can expect arguments with their opposition is determining who will get the government subsidies for health insurance that is part of the Act. Starting in 2014, some spouses that are not covered by health insurance through his/her employer will be eligible for subsidies to assist them with purchasing insurance. Households at 400% of the federal poverty level will be eligible for certain subsidies. So, for instance, a family consisting of a mother and three children, where the household income is $94,200 or less would be eligible for these subsidies that would reduce the cost of their insurance under the Act.

Additionally a payor spouse may become eligible for subsidies for his/herself by virtue of the fact that as a payor of alimony they get a tax deduction for the amount of alimony they are paying which could reduce their net income to a point where they are below the magic point of 400% of the poverty level, and therefore qualify themselves for these same subsidies for their own purchase of health insurance.

One of the more important aspects of the Affordable Care Act is as the Obama Administration has classified it: “giving parents greater control over their children’s health care.” Children will also no longer be excluded from health insurance for pre-existing conditions. Additionally, and very important to young adults many of whom are doing without health insurance coverage in their early years of employment after college due to costs or who are without health coverage available to them on their own through any employer, will be able to remain on a parent’s health coverage, being offered by the parent’s employer until the age of twenty-six. This is even if they have an offer of coverage through their individual employers but have not yet exercised that option for any reason.

This aspect of the Act will likely create other disputes in the realm of divorce, as where a payor spouse, who is paying alimony and/or continuing child support, especially in states like New Jersey, where child support could still be an issue for children in undergraduate or even post-graduate education programs to be looking for credits and contributions from the former spouse who is receiving this support. This will cause these child support disputes to be more than just a straight calculation of both parties income and will lead to more discussion and debate of the amount of support to be paid in these types of cases.

As divorce and matrimonial attorneys, we need to fully educate ourselves about the many available options that the Affordable Care Act provides for our clients. We also must be wary of the pitfalls and other problems which this Act may cause for many of our cases and be guided accordingly.