NPR has an excellent, if disturbing, article on how spouses continue to digitally stalk their estranged spouses during divorce.
As the article relates, a spouse can obtain a GPS tracking device and hide it in a jointly owned automobile without violating digital privacy laws. Similarly, spouses can, during the marriage, attach spyware to computers and phones that are jointly owned and monitor them until the disposition of the property at the end of the divorce.
Is this really legal?
We would argue no.
While it is true that certain spyware devices get around a violation of a digital privacy or wiretap law, it does not absolve a spouse of stalking. Remember, on the surface following your spouse around is not in itself illegal in one sense – you can appear in the same public places together or watch from afar without trespassing, just as with the digital stalking. But we do have laws that address stalking so that otherwise, legal behavior will now become illegal.
If a spouse thinks during the divorce the other spouse is spying on him or her, that spouse can collect whatever evidence supporting that belief and put in an adult abuse petition. If the court finds the evidence credible, the court could issue an order of protection that would include digital stalking, and subsequent violations could result in the court potentially putting that spouse in jail. Also, all evidence of these actions could be used against the spying spouse in the divorce – to show relative fitness for custody or for misconduct that could result in an uneven distribution of marital assets. And our divorce courts usually issue at the onset of the case mutual non-harassment orders, and digital stalking would violate that order.
While criminal prosecutions as of now for digital stalking may be uncommon for a variety of reasons, it does not mean that the stalked spouse is without remedies. But to make a compelling case, the spouse will have to have concrete proof – evidence of spyware and links to reports going to the spying spouse. This may not always be easy.
In general, spouses should avoid this type of behavior, as it really does not help. “Good” evidence a spouse may uncover could never end up in the trial if the court finds that it should be excluded because of how it was obtained. Even if admitted, it could backfire when the court hears how the spouse obtained it. Further, digital stalking only increases poor decision making by spouses with regard to an ex. It can lead to dark places that do not help anyone move on with their lives, particularly where children are involved.
Social media brings too much of your former spouse’s life into view, too close. Keeping a distance may be the healthiest move you could make in order to move forward with your life.
If you have questions about digital spying and divorce, contact us – we can help.