Dirty Tricks in Divorce Can Backfire: What New York Courts Do With Spying, Deleted Evidence, GPS Tracking and Attorney-Client Emails

A bitter divorce can create a dangerous temptation: if you believe your spouse is hiding something, why not get the evidence yourself?

A high-profile New Jersey divorce involving billionaire hedge fund manager John Overdeck is a spectacular example of why that can be a terrible strategy. According to recent reporting, a New Jersey Family Court judge found that Overdeck’s estranged wife, Laura Overdeck, engaged in multiple discovery abuses, including improperly accessing her husband’s computer and photographing emails involving his attorneys, obtaining access to his private post office box, and later failing to preserve potentially critical evidence on her phone. The judge imposed an extraordinary sanction: she was barred from testifying or presenting affirmative evidence and experts in the divorce trial. Her legal team is appealing the ruling.

Does the punishment fit the crime?

The case is being litigated in New Jersey, not New York. But the lesson translates directly to New York divorce and matrimonial litigation: playing detective can jeopardize the very financial claims you are trying to prove.

New York Courts Have Already Seen This Movie

The New York case that most dramatically illustrates the point came out of Kings County Supreme Court before Justice Jeffrey Sunshine.

In C.C. v. A.R., 192 A.D.3d 654 (2d Dept. 2021), one spouse installed spyware on the other spouse’s telephone. Evidence indicated that the software could activate the phone as an open microphone and had been used around the time the other spouse was meeting with an attorney. After litigation began, data-wiping software was also used on computing devices despite a court order requiring preservation of the evidence.

Justice Sunshine imposed an exceptionally severe remedy. The offending spouse’s claims for equitable distribution, spousal support and counsel fees were stricken. The Second Department affirmed. It concluded that the combination of secretly intercepting communications, destroying evidence about what had actually been intercepted, and invading the opposing spouse’s attorney-client privilege seriously compromised the other party’s ability to defend the divorce case.

That is about as clear a warning as New York matrimonial law can provide. Attempting to gain a litigation advantage by secretly monitoring your spouse can result in losing your own financial claims.

Spoliation of Evidence Can Be Devastating in a New York Divorce

New York courts have broad authority to sanction a party who destroys or fails to preserve relevant evidence.

To obtain a spoliation sanction, the complaining party generally must establish that the other party had an obligation to preserve the evidence, destroyed it with a culpable state of mind, and destroyed evidence relevant to the claims or defenses in the litigation. When evidence is intentionally destroyed, its relevance may be presumed. Available sanctions range from an adverse inference and evidentiary preclusion to striking pleadings entirely.

In a modern divorce, this frequently involves electronic evidence. Phones, text messages, emails, cloud accounts, business records and financial applications may all become discoverable. Once litigation is pending or reasonably anticipated, intentionally deleting relevant information can create a much larger problem than whatever was contained in the original message.

Deleting the evidence does not necessarily make the problem disappear. Sometimes it makes the court assume the missing evidence was unfavorable.

Attorney-Client Communications Are Particularly Dangerous Territory

Private communications between a client and matrimonial counsel are fundamentally different from ordinary evidence.

New York’s attorney-client privilege expressly protects confidential communications even where another person obtains them without the client’s knowledge. CPLR § 4503 prohibits a person who obtains such communications without the client’s knowledge from disclosing them in litigation.

A very recent First Department decision shows that courts continue to take this seriously. In Park v. Butkow, 249 A.D.3d 452 (1st Dept. 2026), the wife printed and retained an email between the husband and his attorney that had appeared on a tablet and later gave it to a court-appointed forensic evaluator. Although the court ultimately declined to impose contempt or spoliation sanctions because the original emails remained intact, it found that the husband had a legitimate basis to bring motion practice over the intrusion and that the wife exercised poor judgment by retaining and disseminating the communication.

The message is straightforward: if you accidentally encounter an email between your spouse and their divorce attorney, do not forward it to yourself, photograph it, print it or send it to your lawyer. Stop and obtain legal advice about how it should be handled.

Knowing a Password Does Not Necessarily Give You Permission

Justice Sunshine addressed another version of the problem in Gurevich v. Gurevich, 24 Misc.3d 808 (Sup. Ct., Kings County 2009). There, a wife accessed her estranged husband’s email account using a password she already knew. The court distinguished between intercepting electronic communications and accessing previously stored emails. It concluded that accessing stored messages did not constitute criminal eavesdropping under the particular statute at issue, while specifically noting that unauthorized retrieval could potentially implicate New York’s computer-access laws. Privileged attorney-client communications remained protected.

The practical point is important. Knowing your spouse’s password is not the same thing as having unlimited legal authority to rummage through an account after separation.

What About AirTags and GPS Tracking During a Divorce?

Secret location tracking creates another serious risk.

Under New York Penal Law § 120.45, unauthorized GPS or device-based tracking can constitute “following” for purposes of the stalking statute when the additional statutory requirements are satisfied, including an intentional course of conduct causing specified harm and, under the applicable subdivision, prior notice to stop.

That does not mean every use of an AirTag, vehicle GPS system or location-sharing application between spouses is automatically criminal. Ownership, consent, purpose and the surrounding conduct matter. But covertly placing a tracker on an estranged spouse because you want evidence for a divorce case is precisely the kind of self-help that should be discussed with counsel before anyone touches the device.

Discovery Exists for a Reason

New York matrimonial litigants already have powerful legal tools for finding hidden assets and proving misconduct relevant to financial claims. We can subpoena banks, employers, brokerage firms and businesses. We can demand tax returns and financial records. We can conduct depositions. In appropriate cases, we can retain forensic accountants and computer experts and seek court orders preserving electronic evidence.

There is usually no reason to become your own private intelligence agency.

The irony of these “dirty tricks” cases is that a spouse may begin spying because they believe they are uncovering evidence that will win the divorce. Instead, the surveillance, hacking or destruction of evidence becomes the most important evidence in the case, except now it is evidence against them.

At Mindin & Mindin, P.C., we represent clients in complex New York divorce litigation involving hidden assets, electronic discovery, financial misconduct and high-conflict matrimonial disputes. If you believe your spouse is concealing assets or improperly monitoring your communications, the answer is a strategic legal response, not a digital arms race. Contact our office for a confidential matrimonial consultation before a questionable shortcut becomes the most expensive issue in your divorce.