Is Spying on a Spouse or Domestic Partner Legal?

Emails, texts, and Facebook posts are being called on as evidence in an increasing number of divorce proceedings. But when it comes to collecting this kind of “cyber evidence” — what’s fair game, and what crosses the line? Spouses attempting to build a case for divorce can unknowingly expose themselves to criminal and civil liability in pursuit of the proverbial “smoking gun”.

It almost goes without saying that uncovering evidence that a spouse or partner is having an affair or engaging in other lurid and/or improper behavior is often enough to precipitate the decision to file for divorce or dissolution of a civil union. Whether or not damaging emails, photos, and texts can be admitted as evidence in divorce or dissolution litigation, however, largely depends on how the information is collected.

In today’s technology-driven world, the kind of spying taking place may involve any number of stealth “snooping” technologies, from computer spyware as a way to gain access to email or Facebook passwords to GPS-tracking smartphone apps.

Federal wiretapping laws and the New Jersey Wiretapping and Electronic Surveillance Control Act (N.J.S.A. 2A:156A) regulate the privacy of stored, electronic communications, including the interception of internet and phone communications, and are often used to help define the legal limit of high-tech spying. Although not drafted with divorce cases in mind, these laws are absolutely applicable to anyone who engages in conduct that accesses such information without his or her spouse’s knowledge.

Activities that may be illegal or constitute a violation of privacy include the following:
(note that differences may occur by jurisdiction and State laws)

• Hacking password-protected accounts.
• Snooping on a spouse’s computer or phone that is owned by his or her place of work.
• Intercepting and/or recording cellular or cordless telephone calls between your spouse and another party that do not include you.

When it’s a matter of a stranger spying on you, the rules for what constitutes an invasion of privacy are pretty clear, but in cases of “inter-spousal” spying there can be significant gray areas. For example, in the seminal court case, White v. White, 344 N.J. Super. 211 (Ch. Div. 2001), the only reported decision of its kind in New Jersey, a wife tried to use emails between her husband and his girlfriend as evidence in their child custody dispute. The husband asked the court to reject the emails based on his right to privacy because he claimed they were located on his personal, password-protected AOL email account.

Only, they weren’t. As it turns out, the husband’s email account had been inherently configured to automatically copy all email correspondence to a folder on the desktop of the couple’s shared family computer. Accordingly, the method of interception did not violate law because the email intended for the husband had been transmitted and stored in its intended place (thus making the message read after its transmission). The wife didn’t need to use a password or even log in to AOL to see the incriminating evidence — it was right there for all to see on a computer located in the family room able to be plucked. Because they were so easily accessible, the court ruled the husband didn’t have a reasonable expectation of privacy, thus making the emails admissible evidence in the custody case.

In general, email correspondence and texts between the two of you, phone calls you were both involved in, or publicly-accessed information, such as Facebook photos shared publicly, may be admissible in court as long as they do not offend the Rules of Evidence. However, it’s always a good idea to talk to your attorney about the kind of evidence you are already in possession of against your spouse or partner, as well as the tactics you used to obtain it – to say nothing of arming yourself with this information before creating a situation that could potentially hurt your chances of success.

Learn more about safeguarding your computer in our article:
How to Keep Computers and Smartphones Safe from Spying Spouses

And our blog post: Spying on Your Spouse During Divorce: How Far is Too Far?