Snooping and Spying Spouses

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,, October 23, 2012.)


10 Myths About South Carolina Family Law

1.  If you were married in S.C., your divorce should be filed in S.C.  Where you were married is not relevant in determining where you can get divorced; where you and your spouse currently reside is what matters.  In order to file for divorce in S.C., at least one of the parties must have been a resident of S.C. for more than a year, or both parties must have resided in S.C. for at least 3 months.  

2.  It’s always a good idea to file before the other person does in order to get the upper  hand.  The person who files fist (Plaintiff) has equal rights to person who responds to the complaint (Defendant).   

3.  As long as you’re separated, you can date other people.  You are married until the day of your divorce.  Dating during a separation period could permanently bar you from alimony and may affect custody, no matter what your separation agreement says.  Also, remember S.C. Family Courts do not require proof that you’ve actually committed adultery; it is only necessary to prove that you had the inclination and the opportunity.  Just being seen in suspicious circumstances may be enough proof.  

4.  If you have lived with your girlfriend/ boyfriend in S.C. for over 5 years,  you’re married by Common Law.  Common Law Marriage does exist in S.C., but it is not determined by the length of time a couple has lived together.  

5.  A parent who is not paying child support has no right to visitation with his or her child.  Visitation rights are not linked to a parent’s payment or non-payment of child support.  

6.  If you’ve been married for less than a year, you can get an annulment.  Annulments are extremely rare, extremely hard to obtain and are not based on the amount of time you’ve been married.  

7.  If you lose your job, you can stop paying child support.  To modify a child support order, you must file an action to seek relief from the family court.  If you don’t pay your child support as ordered arrears will accrue and you may be held in contempt.  

8.  The father can’t get custody in S.C.  Either parent can get custody; it is determined based on what’s in the best interest of the child.  Also, just because a person is a less than stellar spouse, does not necessarily mean they are a bad parent.

9.  I paid for it, it’s mine.  Property acquired during your marriage is likely “marital property” and may be subject to division by the Family Court.  Even property that was “yours” prior to the marriage may now be “marital property” and may be subject to division by the Family Court.  

10.  You can get divorced based on emotional abuse.  Emotional abuse is not a ground for divorce in S.C.  There are only 5 grounds for divorce in S.C.:  Adultery, Physical Cruelty, Desertion for more than one year, Habitual Drunkenness/ Drug Abuse, and Separation for a period of one year.