To Spy or Not to Spy – Help Me! (Part II)

On behalf of The Marks Law Firm, L.L.C. posted in Divorce, Evidence, and Private Investigators on Thursday August 8, 2013

In our previous post we discussed certain implications of the federal and state wiretap statutes with regard to “digging up dirt” on your estranged spouse to get an advantage in a divorce or custody suit.  In this post, we continue that discussion.

One big question we receive involves electronic surveillance in different forms.  For example, can I bug my own computer, my own phone, my own house, even if I am not living in the house or using that computer or phone during the separation.  Since I own it, should that be enough?

When we return to the wiretap statutes, we recall that permission of one party will suffice to record if and only if that party is part of the conversation.  So, putting a bug in your own property that will now be used only by your ex means you will not be a party to the conversations, so taping those conversations – even on your own property – likely violates the wiretap statutes.

What if you hire a private investigator or other third party to do the bugging?  You should not do this, because you will be held accountable under the wiretap statutes.

What if I just hire a private investigator to do surveillance and take pictures in the open – no breaking or entering?  Since you are not doing any recording and not invading private physical space, this traditional form of digging up dirt would seem to be legal.

Okay, so what if the private investigator has a device that magnifies audio and can record conversations he witnesses from afar?  Now we get into murky waters again, because while these conversations may take place in the open, the expectation of privacy may prevent the admission of these conversations in evidence and could violate several privacy torts and expose you to civil damages.

What about online dating forums, can I get access to that stuff?  If you suspect or even know that your ex is on a dating site, and you have not yet separated, you might be able to seek those communications in discovery, but that will be potentially tough sailing.  If you happen to have a good friend who was approached online by your ex, the friend could give you those communications or copies of the profiles, but it is unlikely he or she will be talking much about you.  However, some people do post photos of the children, and that is a real concern – so obtaining those photos could be beneficial.  If you are thinking about creating a fake profile in order to pull potentially nasty statements about you or the children in chatting or emails, you want to be very careful because while you will not violate the wiretap statutes you may violate the terms of service of the dating site or the ISP, or certain privacy torts again.

What if you suspect your ex has been viewing inappropriate sites on the Internet through the home computer you own?  As long as you have the computer and ownership, you can certainly have the disk drives forensically imaged and examined.  But if you try and access your spouse’s computer you do not own by a remote software program, you again violate the wiretap statutes, in addition to other federal and state criminal laws.

You may get the sense from all of the discussion of hypotheticals that we do not see spying as a good idea.  And if you got that impression, you would be right.  Think in simple cost-benefit terms:  the risk of breaking the law versus the reward of admissible evidence that will turn your case.  In most situations, you will probably end up on the losing side of this equation.  Also, engaging in that kind of behavior will come up when you seek to introduce the evidence in court, and the judge may not like a parent or spouse who went to such lengths to get the “goods” on the other parent or spouse.  Finally, because we are a no-fault state, the degree of misconduct you would have to uncover would have to go to serious risk of harm to the children or proof that your ex had secreted marital assets.  While the temptation to get dirt may be very strong in a divorce with bitter feelings and lots of conflict, lowering yourself in the eyes of the court rarely is a winning strategy, particularly if you are exposing yourself to civil or criminal liability.

Your best chance at an optimal resolution of a divorce or custody matter is to have an excellent attorney, one who will not have Ray Donovan on retainer.  In the end, the best “fixer” is an experienced attorney who knows how to discover damaging evidence through legal means.

If you feel like you need to get the better of your soon-to-be ex, do not take matters into your own hands or hire Ray Donovan – seek out a skilled and experienced attorney.

If you have questions about spying or wiretapping in a family law matter, contact our St. Louis family law attorneys – we can help.