Videotaping a Cheating Spouse in Georgia

Can I use videotape in my home to catch my spouse "in the act"? Video cameras and video surveillance are easily available these days, from high-priced HD security systems, to thumb -sized wireless cameras that can fit in a clock, teddy bear or other hiding place. It is tempting to use these devices to catch a cheating spouse "in the act" as evidence in a divorce or custody case. But is it legal to do that? And more importantly, can it be used as evidence? Most Georgians are familiar with the concept that recording people in private places is illegal, but until recently, the Georgia code protected so-called private "nanny cams". A Georgia House bill passed in 2000 included an exception for security cameras in the home. Security video shot in the home was legal, and could be used as admissible evidence in a civil custody or divorce trial if it met the requirements of the Georgia exception. This has now changed. In a decision last week, the Georgia Supreme Court announced that the exception passed in 2000 does not exist. How, you ask, could a law be "wiped off the books" like that? The trouble, as is often the case, arose in the legislature. Back in 2000, the House passed one version of the bill, and the Senate another. The House version included the "home security" exception, but the Senate bill did not. Oddly, both of them were allowed to become law, and published in the official code - thus we have had dueling versions for the last 13 years. The Supreme Court, in the case of Rutter v. Rutter, has now directly addressed this conflict, and held that the Senate version, adopted after the House version, fatally conflicts with the House version thus overriding and eliminating the home security exception. Alert lawyers will no doubt immediately let their clients know about this development, because taping in the home could result in criminal charges, and any video will likely be inadmissible in a civil divorce or custody proceeding. Hopefully we may expect the legislature to take up this issue soon. But if you have video shot in the home, or anticipate using such video you will need to talk to your attorney about whether it can still be used at all, or whether it must be destroyed.

Should I get help from Mom and Dad?

Divorce unsettles finances in the best-prepared households. In many cases, the cost of a protracted battle can exhaust the finances of one or the other parties. Well-meaning family members sometimes step in and provide support for their cherished loved one. It had generally been the case that such financial contributions, without more, were in the nature of gifts and could not be used in the calculation of post-divorce support or consideration of attorney fees to be awarded. Along comes the Georgia Supreme Court in Jarvis v. Jarvis (219 GA 818), and stunned the legal community by holding, in a case of apparent first impression, that funds provided by a party's parents could be included in the consideration of a party's "financial circumstances" when deciding the correct amount of attorney fees. The court noted that there was no "statutory limitation on the type of evidence of 'financial circumstances' a trial court may consider when a trial court makes a fee award" and ruled that the judge did not abuse his discretion taking this source of funds into account. Thoughtful attorneys will no doubt now inquire into whether their clients received help from family members either prior to or during the divorce. Such arrangements should be disclosed to counsel at the outset, and careful thought should be given to whether it is wise to continue. Early disclosure can allow your attorney to give you advice on better ways to finance the significant cost of litigation, and reduce the chance of a result like the one in Jarvis. Thoughts? Twitter me @deoles Find me on the web at www.deoleslaw.com