Divorce FAQ's

Spying On Your Spouse

1. I believe that my spouse is cheating on me. Can I legally spy on her?

Many people these days use all kinds of spying methods on their cheating spouses. But most of them are not aware that using spying equipment or surveillance services could be illegal. They could find themselves in a thorny legal mess unless they know the facts and the strict federal and New Jersey laws.

So you decide to buy some surveillance equipment to spy on your cheating spouse. Hidden cameras, listening devices or GPS systems will allow you to monitor the activities of your spouse. Specific software installed in your spouse’s computer could monitor your spouse’s online presence and activities. Hiring a detective to spy on your cheating spouse is another popular method. It is not illegal to purchase these products or services. However, most people don’t realize that there are strict state and federal laws regarding the use of surveillance equipment such as listening devices which allow you to eavesdrop on another person, hidden cameras which let you view the activities of others without their knowledge, GPS tracking devices which allow you to monitor the location of someone’s vehicle, and other gadgets or software installed on someone else’s computer to monitor their internet activities.

In summary, there are very strict laws apply to electronic communications such as e-mails or computer communications (chat rooms, instant messages), and telephone calls. Spouses who attempt to spy on a cheating spouse using surveillance equipment should be aware that they could find themselves on the wrong side of the law.

If you plan to purchase surveillance equipment from a store or online, then you will notice that most stores have disclaimers that mention that these products must not be used for illegal activities. Most surveillance product manufacturers clearly state that their products should not be used in an illegal manner. These disclaimers also point out that the purchaser is the only one responsible for the use of the products. So be very careful!

2. What are also some other illegal spying activities?

Pre-texting is also illegal: the practice of calling a cell phone company and pretending to be someone else in order to get access to their phone records.

Also, if you hire a private investigator to spy on your mate and if he uses illegal methods to do so, you could be liable, too.

If you call a company and pretend to be someone else in order to get access to phone records. If you hire a detective and he uses illegal methods to spy on your cheating spouse. It’s your liability! Logging into websites with your spouse’s user name and password without his or her knowledge. (e.g. online banking account)

So is there a way to spy your cheating spouse without having trouble with the law? Of course there is! There is really no need to use any kind of surveillance equipment or hire a private investigator. Use your own eyes and ears. Use your mind and knowledge of your spouse. I mean, it’s your spouse! You should be able to tell if he or she behaves strangely or changes his or her habits for no reason.

3. Can a person record or tape a conversation of his or her spouse?

Pursuant to the federal and state wiretapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can’t tape a spouse while he or she is talking to other people, and more specifically a paramour.

In 1991, a New Jersey trial court in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), addressed the issue as to whether a husband violated the wiretapping statute by taping his wife’s telephone communications in the marital home, and whether such actions could result in damages. The court ruled that it was illegal for a person to record the phone conversations of his spouse with another person. The court reasoned that the invasion of privacy was severe. The court found that the secretive taping of a spouse’s telephone calls under those circumstances was an egregious invasion that warranted both compensation and punitive damages.

Therefore, although both New Jersey and Federal wiretapping laws permit the taping of a conversation to which an individual is a party, any other form of taping or recording of another person’s conversation can be a violation of criminal and civil wiretap laws.

4. I believe that my husband is cheating on me. Can I wiretap his phone?

Divorce is a nasty business. In my experience, I have encountered many cases wherein spouses wiretap the home phone, the spouse’s office phone, or the cellular phone in order to obtain information about their spouse’s affair or other information. In New Jersey, the use of an unauthorized taped conversation is inadmissible because the illegal taping violates state and federal law. The spouse could be civilly or criminally liable as a result of attempting to introduce such information.

Many divorce lawyers have had the experience of having a client walk into the office stating that he or she has absolute proof of a spouse’s adultery and cheating ways. In most cases, these conversations are not admissible. Thereafter, the clients “fess up” as to the illegal manner in which they obtained the proof. The clients usually admit that the taped phone conversations were obtained through the unauthorized recording of their spouse’s telephone conversation with a new lover. I always immediately advise the client that he or she has violated both New Jersey and federal wiretapping laws, which may expose them to criminal penalties, as well as severe civil penalties. If a client has obtained illegally intercepted communications, then he or she should destroy them, and not attempt to use them to obtain an advantage in any upcoming divorce case.

In summary, the intercepted phone conversations may give a spouse enough proof and motivation to start divorce proceedings. However, the means used to obtain these taped phone conversations can prove to be disastrous. The spouse who conducted the illegal wiretapping can be exposed to a civil lawsuit by his or her former spouse. Moreover, there is potential criminal liability as well.

5. Can I intercept my spouse’s cell phone calls?

The State of New Jersey has adopted a more restrictive wiretap statute than the federal wiretapping law. New Jersey’s wiretap statute defines a wire communication to include “any electronic storage of such communication, and the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.” This is the opposite of the federal statute, which exempts cordless phones. Thus, under New Jersey law, the interception of cell phone communications is prohibited.

6. Can I intercept my spouse’s pager communications?

Someone who suspects adultery often seizes the spouse’s pager and scans the memory for telephone numbers. Scanning a spouse’s pager may provide proof of adultery. An interesting issue that then arises is whether the retrieval of stored telephone numbers on a pager constitutes a violation of the wiretap act. On a federal level, the answer would appear to be no. The New Jersey Wiretap Act is more stringent and defines “wire communication” as including “electronic storage of such communication.”

7. Can I intercept my spouse’s e mails?

In my experience, many spouses are caught in adulterous situations by having their e mails reviewed. If you search the internet then a surfer can find literally hundreds of spyware programs and “gizmos” offered for sale that enable a person to retrieve deleted e mails. We are now living in an information era. In the past, the most common way a spouse was busted for adultery was by being trailed by an investigator. In the modern world the retrieval of a spouse’s stored e mails is the most frequent way to discover an adulterous affair.

There is no easy answer to the question of whether a spouse can retrieve e mail messages and records of chat room activity without violating wiretap statutes. If the computer is located in the marital home, then in most cases the interception of e mails will not constitute a violation of New Jersey and federal wiretapping laws. However, if someone tries to intercept e mails on a spouse’s computer at his workplace, then a violation of several New Jersey and federal laws results.

An illustrative case is White v. White, 344 N.J. Super. 211 (Ch. Div. 2001). The White case is the first reported New Jersey decision that addresses the admissibility of a husband’s “private” e mail communications between himself and his girlfriend accessed by the wife’s computer expert. The court denied the husband’s motion to suppress the e mails on the grounds that the wife’s action violated the New Jersey Wiretap Act. Finding that the e mails had been stored, i.e., saved, “post transmission” in the husband’s personal electronic file cabinet, the court held that the New Jersey Wiretap Act only applies to communications that are in transmission, and not to those that have been previously sent and saved.

The White court further held that the wife’s accessing the “private” e-mail communications of the husband did not constitute an invasion of privacy since the husband had no objective reasonable expectation thereof. The evidence showed that the e-mails were accessed from a computer maintained in a sun room that the husband had been occupying during the parties’ in house separation; that the wife and the parties’ three children were in and out of the room for various reasons, including the use of the computer; and that, while easy to do, the husband failed to employ any privacy protection mechanisms to prevent unwarranted intrusions into his personal files. The court also found that the wife’s arguable snooping into her husband’s personal affairs to learn information about his possible affair was not uncommon under such circumstances.

8. What are the other potential legal ramifications of illegally accessing my spouse’s stored computer files?

In many cases a spouse who suspects adultery will hack into the cheating spouse’s computer files and e mails. As discussed above, if the computer is not located in the marital residence, then this intrusion will constitute a violation of both New Jersey and Federal wiretapping laws. In addition, there may be some tort liability. Hacking into your spouse’s computer may constitute the common law tort of the invasion of privacy or invasion of seclusion. Hacking into your spouse’s computer could also be considered as theft. However, in my experience, it is very unlikely that a prosecutor would file any type of criminal charge(s) if a spouse hacked into a home computer. The prosecutor may be more interested in pursuing theft charges if the computer hacking occurs on the cheating spouse’s computer that is located at his place of employment, or from a computer system of a corporation or financial institution.

9. What is the status of the law with regard to the interception of a spouse’s e mails and computer records?

With the current prevalence of internet sex and resulting divorce litigation, wiretapping violations are at the forefront in many divorce cases. A spouse who tries to prove adultery by retrieving messages from hard drives, internet services, recycle bins, or other areas of storage could clearly be in violation of both New Jersey and federal wiretapping laws. The information that was obtained to verify the adulterous relations may be invaluable on a personal level. However, any evidence that is obtained by illegal wiretapping or by illegal hacking into a spouse’s computer should not be used as leverage in a divorce case. An experienced divorce lawyer can actually use the act of illegal wiretapping as grounds to file a civil suit against the violating spouse. The civil suit is filed as part of the divorce case and is called a Tevis claim. The cheating spouse can actually use the wiretapping violation as a bargaining chip to obtain a more favorable divorce settlement.

10. Can I use video surveillance to spy on my spouse in our marital home?

If the video surveillance occurs in the marital home then in most cases it will be permissible, and it will not constitute an invasion of privacy. However, if the video surveillance occurs outside of the marital home, then a strong argument can be made that this action constitutes a marital tort of the invasion of privacy. The spouse who was filmed could assert that he or she had a reasonable expectation of privacy that he or she would not to be hounded by video surveillance. The key issue is where the video surveillance occurs. A suspecting spouse certainly should not use video surveillance outside of the marital home, or in her mate’s workplace.

Illustrative is the case of Colon v. Colon, the Appellate Division recently addressed a divorce action which included husband’s allegations that wife had violated the New Jersey wiretap act by tape recording home telephone conversations and that she had violated his privacy by placing hidden video cameras in the home office at their New Jersey marital residence and in the bedroom of their New York apartment. The trial court awarded the husband statutory damages of $1,000 for the phone wiretap and, for the invasion of privacy claim, $1 in nominal damages. (as there had been no proof of actual damages) and $125,000 in punitive damages.

The Appellate Division reversed the trial court, and it concluded that the huge monetary award was erroneous. As to the New Jersey home office, there was no finding that husband had a reasonable expectation of privacy in the home office, as the whole family freely used the room. As to the New York apartment, New York law provided no common law or statutory right of privacy. Moreover, even if there were a right of action, the court held that before punitive damages can be awarded, there must be a finding of compensatory damages, for which there was no proof here.

11. Can the use of video surveillance on a spouse constitute a violation of the Federal Wiretapping Act?

Family members and spouses are also likely to use video surveillance with greater frequency. Video surveillance is not within the purview of the Federal Wiretapping Act. The courts have generally exempted video surveillance from the Federal Wiretapping Act.

12. Is the planting a global positioning device on your spouse’s car legal?

The use of GPS systems is increasingly being used to monitor cheating spouses. In the high profile divorce case Nets star Jason Kidd, whose wife, Joumana, reportedly planted electronic monitors on his vehicles. Moreover, the falling price and shrinking size of GPS systems have spouses from all walks of life keeping track of their “better” halves. Spouses can now use a GPS device to follow a vehicle and presumably the cheater behind the wheel, by using a GPS system. The GPS system’s software works seamlessly with online map services such as Google Maps. Thereafter, the suspecting spouse can sit back and wait for that “gotcha” moment.

The legality of secretly planting a GPS system requires a very fact sensitive analysis. Like checking a spouse’s e-mail, the legality of secretly planting a GPS tracker depends on who owns the vehicle. In a purely technical sense, if you own the vehicle or have joint ownership of it, then it is perfectly legal to use a GPS system to monitor it. Spouses can legally access their spouse’s e-mail in scenarios where there is a jointly owned computer or a computer that is used by the entire family. The key issue in the planting of a GPS system is whether the spouse who was tracked had a reasonable expectation of privacy. The question apparently has not yet to be raised in a divorce case in New Jersey. The law is normally five years behind technological developments. It normally three to five years after technology hits the public that it’s use is raised in a divorce case. In short, it probably will take three to five years before the legality of using a GPS to monitor a cheating spouse is raised in a divorce case. The development of case law is a slow process, and it often does not keep up with the fast pace of technology development.

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