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Every Move You Make, I'll Be Watching You

Updated: Jan 20

One of the biggest musical hits in the US and the UK was the Grammy winning song “Every Breath You Take", written by Sting and performed by the rock band The Police. For better or for worse it could easily be the anthem of the current world of divorce, where spouses are constantly spying on each other. As Sting reminds us “every move you make, every vow you break… I’ll be watching you.”

How prevalent is spying in the context of divorce? Based upon everything I have seen in my divorce practice, spousal spying is not only becoming more commonplace but also more sophisticated.

For many years “surveillance”consisted of hiring a private investigator to follow and, if possible, photograph your spouse in compromising situations. The primary purpose of such investigations was to establish grounds for divorce such as adultery or cruelty.

However, the days of the private eye lurking around the “love nest” of your cheating spouse have been replaced by sophisticated devices and apps which cost a fraction of the PI bill and are far more effective. Additionally, the purpose of the spying has grown to include financial discovery, the location of hidden assets and to secure evidence relating to custody of the children.

The major caveat here is that many of these devices and techniques are illegal under federal and state law, which not only results in suppression of the illegally obtained evidence in the divorce case but also opens up the spying spouse to criminal prosecution. Thus, it is absolutely critical for spouses to consult with an attorney in their state or country before engaging in such activity.

For example, the photo lens has been replaced by telephone taps and voice activated tape recording devices. Clearly such techniques are illegal in most jurisdictions in the US. Similarly downloading a keystroke program onto your spouse’s computer – a program which can be purchased online for about $49.00 - will allow you to virtually see everything written by him or her on the computer. The use of such sites and apps is also illegal in most jurisdictions. Similarly, downloading apps on your spouse’s smartphone with the capability to listen in on conversations or record them is also a big No-No. As are GPS trackers.

Of course, there is the use of “nanny cams” or other “hidden cameras” to catch your spouse in compromising situations. Recently, a woman shared on Tik Tok that she set up a camera in her home because she believed that her husband was cheating on her. What the hidden camera captured was her husband fooling around with the wife’s best friend, who had been invited to stay at the couple’s home by the wife as a temporary measure. The wife shared the cheating video and the subsequent one where she confronted the wayward husband and her friend (including the fisticuffs which ensued) on Tik Tok. The videos have over 9.1 million views and 1.1 million likes. Let’s hope that the next video is not the wife going off to prison for the felony of illegal eavesdropping.

Some states such as Pennsylvania, Connecticut, Washington, Florida, Illinois, Maryland Massachusetts, New Hampshire, California, Montana, Michigan and Nevada have said that the use of hidden cameras is illegal without the consent of the person recorded. Less clear is whether such laws apply to divorcing spouses who secretly record their mates inside the marital home. However, an Iowa court recently found that a man had violated his wife’s privacy by videotaping her with a camera surreptitiously installed in an alarm clock in her bedroom in their home.

As noted above, this entire area is a minefield for divorcing spouses. While the spying techniques described above were previously employed to uncover infidelity and to establish grounds for divorce, people are now expanding the purposes of the spying activity to deal with other aspects of their divorce case. This will be the subject of future articles.

As a final note it bears repeating, that spouses need to solicit advice from an experienced matrimonial attorney before engaging in such behavior. Moreover, clients should note that revealing or turning over such illegally gathered evidence to your divorce attorney may put him or her into an ethical bind with respect to the handling of your case. Caveat Client!

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