Understanding Divorce A Little Better

Posted on: 10 January 2017

Why bother hiring a private investigator to catch your cheating spouse when you can buy a few electronic devices and some software to do the job for you? Because you could end up running afoul of federal or state laws that are designed to protect people—even straying spouses—from unlawful intrusions into their privacy. Before you run the risk of breaking the law, here are three things to consider.

1. Is all that evidence even worth it?

If your spouse has denied cheating on you, presenting him or her with rock-solid evidence of an affair may give you a sense of vindication—but is it worth anything more than that? 

The answer to this question is highly circumstantial, so you'll need to consult with your divorce attorney about the situation. Since the advent of no-fault divorce, marital infidelity has become less important than it once was, but it can still affect some cases.

For example, if you have a prenuptial agreement that alters the amount of alimony you either have to pay or will receive if your partner cheats, that can make getting evidence of an affair worth your while. An affair can also affect the outcome of a child custody case if the judge thinks that your spouse is putting the affair over the well-being of your children. It can also affect the division of marital property if you can prove that your spouse spent a significant portion of the joint marital funds on his or her romantic partner. The judge may be inclined to award you a greater portion of what's left, rather than dividing things up equally.

2. Could you go to jail?

No matter how much you want evidence of an extra-marital affair, you don't want to risk going to jail to get it. For one thing, if you obtain the information illegally, it probably won't be any use to you in court. Judges are unlikely to allow illegally obtained evidence into use for the proceedings.

Instead, the evidence could end up being used against you—as part of a criminal prosecution. Aside from any state laws that you may be breaking (and there could be quite a few), the Federal Wiretap Act makes it illegal to intentionally intercept, disclose, or use the contents of any wire, oral, or electronic communication through the use of a device.

Essentially, that means it's illegal to re-route copies of your spouse's emails to your own inbox using one of the many software programs available out there. It might not, however, be illegal to look in his or her email account if he or she leaves the account open and accessible without a password on the family computer, since the communication has to be in motion in order to trigger the Wiretap Act. A single violation can net you a $250,000 fine and five years in jail.

There are also a plethora of other ways that you can get into trouble for spying on your spouse. For example, putting a GPS tracking device on your spouse's car or phone can get you charged with stalking. Even recording your conversations with your spouse can be legally tricky—in some states, you're free to record any conversation you have, with or without the other person's knowledge or consent. In other states, you may be in violation of the law unless you have everyone's consent.

3. Who should you ask for advice?

In many cases, because the legal issues are so different, you may want to consult with a criminal defense attorney in addition to your divorce attorney (unless your divorce attorney handles both types of cases) before you decide what sort of spying you want to do. If you've already done it and found out after the fact that you were violating the law, consult a criminal defense attorney promptly.