It’s a horrible feeling when you “know” in your gut that your spouse is cheating, but if you’re not careful snooping may land you in a great deal of legal trouble. A 2012 Wall Street Journal article reports several instances of spouses who were convicted of stalking, harassment, invasion of privacy, and violations of the federal Wiretap Act for going too far. In addition to criminal charges, the even greater risk is civil penalties. There are several instances in which a spouse was ordered to pay upward of $20,000 in damages for illegally accessing their spouse’s electronic communications.
Even your spouse has a legal right to privacy. Federal wiretapping laws protect personal communications, as do many state laws, from unauthorized access. In this age of technology snooping has many forms from reading email messages, reading text messages, recording conversations, using hidden cameras, accessing Facebook accounts, utilizing “find my iPhone” features to track movement, to GPS tracking. In 2012, the American Academy of Matrimonial Lawyers reported, 92% of divorce attorneys have seen a rise in the use of information obtained from smartphones, particularly test messages, as evidence in divorce proceedings. As has been declared – “Divorce: There’s an App for that.” Assuming you dig something up, however, it may not necessarily be admissible in court.
Judges tend to frown upon parties who attempt do-it-yourself unearthing of evidence. There are many evidentiary issues that could prevent the evidence from being considered by the court, including authentication, hearsay, and fruit of the poisonous tree. Once a case is filed in the Family Court, however, your attorney will have the right to obtain your spouse’s phone records, emails, Facebook posts, etc. through a formal (and legal) process called “discovery.’ A licensed private investigator can also (legally) obtain the evidence needed to prove your case in court.
Bottom line: If it feels like you are invading your spouse’s privacy, you are probably obtaining the information illegally. The risks likely outweigh the benefit. You will be better served by hiring an attorney to guide you through the legal process. Also, it’s important not to lose yourself in the course of a divorce –
You know who and what your [spouse] is, so the question is who you are and what has this marriage done to you. You know that being an electronic parole officer is not going to make your [spouse] faithful and reliable. You say [s]he has put your health at risk and your marriage is a sham. So the real question is not whether your snooping is justified, but when you are going to decide to get out.
(Emily Yoffe, Ethics of Spying on Your Spouse, Slate.com, October 23, 2012.)