Is it Legal to Spy on Your Spouse During a Divorce?
As tempting as it may be to spy on your spouse either before filing for divorce or during the divorce process itself, don’t do it! Instead of finding evidence helpful to prove allegations of adultery, proof that your spouse is hiding assets or evidence that may help you in your case for spousal support, you may be charged with a criminal offense and find yourself in prison.
Both federal and Georgia state law have provisions to protect private individuals from the electronic spying of other individuals. This includes prohibiting one spouse from invading the privacy of the other. Here is an overview of some common types of spying that spouses often engage in during the divorce process and their legal consequences.
Georgia is a “one-party” state, which means that you can record your conversation you are having with your spouse since you are one party and you consent to the recording. This includes telephone recordings or recordings of conversations you are having in person. You may not record conversations your spouse is having with a third party unless one of the people involved in the conversation consents. Some states require all parties to a conversation to consent to a recording, so if you are recording a phone conversation with someone in another state, you may be following Georgia law, but breaking the law of the other state.
Intercepting Emails, Texts and Other Electronic Information
A Michigan man, who was a woman’s third husband, learned the hard way that there are consequences for accessing a spouse’s password protected email. He discovered that his wife was having an affair with her second husband. He also shared information with her first husband that would help that ex-husband in his child custody fight.
He also learned that the evidence he found is inadmissible in his divorce case. Finally, he learned that he was being criminally prosecuted for violating that state’s anti-spying statute. His request to dismiss the case was denied. He appealed to the Michigan Court of Appeals and lost. The Court decided the man could be prosecuted for violating the law. If convicted, he is subject to a five-year prison term.
Georgia has very similar statutes to the one violated by the Michigan man. It prohibits someone from intercepting another’s private email, text messages, video chats and any electronic communication intended to be private. Federal law also prohibits this activity.
Also, specifically prohibited is the use of software to monitor a spouse’s computer usage. Some software programs track the keystrokes of another person’s computer so that person’s computer activity is followed.
It is no defense for a person to claim that the computer was shared so there was no privacy violation if the spouse who is being spied upon had password protected access, it is against the law to spy on their computer usage and communications.
Expectation of Privacy
The secret to whether one spouse’s actions violates the law essentially depends on whether the spouse had a reasonable expectation that the communication was private. Conversations overheard in a public place are fair game for one spouse to use against the other. Surreptitiously eavesdropping on a conversation taking place in a private place is illegal.
Social Media Posts
You may not be your soon-to-be ex’s Facebook friend or follow him or her on Twitter, but it is not illegal to access information published at those sites. For example, if your spouse posts a photo of themselves appearing drunk at a party on a weekend the spouse had custody of the children, you can use that photo and its caption as evidence.
A deleted photo, status update or comment made on another post can still be located and used as evidence. Even if the spouse changes settings to “private,” it is still not considered private since it can be shared with others who see it and it may show up on other pages. Facebook posts have even been subpoenaed for use as evidence in legal proceedings.
Don’t Do It Yourself: Contact an Attorney
If you believe your spouse is acting in a suspicious way, do not take matters in your own hands. You do not want to cross the fine line between simple gathering of evidence and spying. Contact the divorce attorneys at Georgia Trial Attorneys. We know how to use the discovery process to gather admissible evidence and when to call in a private investigator. We offer a free consultation, so contact us today.