Don’t Spy on Your Cheating Spouse

Posted November 13, 2012 in Child Custody and Support Divorce by


Unexplained absences, furtive phone calls, mysterious credit card charges — there are all kinds of clues that a spouse may be having an affair. However, one piece of detective work that partners who think they’ve been cuckolded should not undertake is to intercept their spouse’s electronic communications, or stick a GPS transmitter on his or her car.

With a plethora of technological options making it ever-easier to catch cheating lovers in the act, suspicious spouses need beware of taking the spy games too far and violating state or federal law as a result.

A recent Wall Street Journal story chronicles men who crossed a line trying to keep tabs on their wives and were convicted of stalking, invasion of privacy and violations of the federal Wiretap Act, which bans interception, disclosure or use of electronic communications acquired through the use of a “device.”

The federal law could certainly apply to, say, putting a key logger on a computer to monitor email and chat conversations. Not every marital act of spying could lead to prosecution– a major question that is still unsettled nationally is whether the Act applies within a marriage, or whether partners give up the expectation of privacy when they say their vows. Federal verdicts have been split: Five federal appeals courts have ruled that the Wiretap Act applies to spouses, and two have ruled that it doesn’t. Regardless, snoopers can also run the risk of violating a number of state laws around hacking, cybercrime, stalking or harassment.

While hacking into email might confirm a spouse’s worst suspicions, the evidence gathered might not be useful in court even if it was acquired legally– laws about what can be admitted vary by state. However, spouses in all 50 states can seek no-fault divorces, where cheating wouldn’t even matter for legal purposes.

That doesn’t mean people aren’t bringing their grudges to court anyway. According to a survey by the American Academy of Matrimonial Lawyers released earlier this year, 92 percent of divorce attorneys have seen a rise in the use of smartphone as evidence in divorce hearings over the past three years.


Risky Business

Beth Richardson

It”s human nature to want to know the truth. But spying and stalking is a risky, and maybe ineffective, way to learn it. “If a client were to ask me what I thought about this strategy, I would explain that it may be inadmissible under privacy laws and therefore illegal,” says Beth Richardson, a family law attorney with San Francisco firm Heath Newton.

Beyond cheating, child safety issues are another reason spouses might spy, which warrant their own investigation — but without breaking the law. “I would then ask why they felt the need to tape their spouse. Did they have a compelling reason, such as a genuine concern regarding the safety of their children while in the care of their spouse?” the attorney says. “Were there any facts relating to alleged molestation of the children or with leaving young children alone during the other spouse’s custodial time? Have there been any arrests for DUI? Are they any facts supporting drug and/or alcohol abuse by the other spouse and the possibility of them abusing drugs or alcohol while the minor children are in their care?”

“Ultimately, a party may need ‘substantial independent corroboration’, as noted in Family Code 3011 (d) to prove any allegations of any type of abuse,” says Richardson. “The bottom line: I would not encourage or support a client using these devices for any issues, including infidelity.”


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