Your marriage is on the rocks, and maybe you suspect your spouse of having an affair or hiding assets. You’re thinking about trying to gather some proof that might be useful in your divorce.
Be careful before you start to dig around. If you spot your spouse’s phone unattended, you may be tempted to scroll through their messages. There are also all kinds of sophisticated surveillance devices available that you could use to record your spouse’s conversations or actions. However, spying on a spouse can violate the law and create serious problems for you. That would only be counterproductive in your divorce.
Marriage doesn’t provide unlimited permission to monitor your spouse
Contrary to popular belief, spouses don’t give up all their rights to privacy with each other once they say, “I do.” California is a two-party consent state, meaning that you cannot record someone’s private conversations or phone calls without their consent. You can face criminal charges if you do. Video surveillance, without audio, can be equally problematic. If you hide cameras where your spouse has a reasonable expectation of privacy, that can also be a violation of the law.
Accessing your spouse’s phone, laptop or tablet without their knowledge or specific permission is no better. Knowing your spouse’s password (or knowing enough to guess it) doesn’t give you the right to access their electronic devices. Even if they gave you consent in the past to access their email or files, that doesn’t mean you have blanket permission to access those accounts in the present.
You need information to proceed with your divorce. However, illegally obtained information may be unusable in court and expose you to civil liability – or even criminal charges. Before recording or tracking your spouse or accessing their electronic devices, it is important to understand where “investigation” becomes a legal liability. An experienced attorney can guide you and discuss alternatives that will be legally sound.