What you need to know to avoid liability or criminal charges if you are tempted to collect information about your spouse prior to a divorce.
I Think My Spouse is Cheating
You just have a feeling. Your spouse is secretive with their cell phone, coming home late from work, and distancing themself from you. The signs are all there, you just don’t have proof.
It seems easier than ever to catch someone cheating. Recording others has become so easy now. Cell phones come equipped with cameras, video recorders, GPS trackers, and voice recording capability. Simple babysitter type monitoring devices are easily available, and a Google search will provide lots of links to more sophisticated devices and software.
You have heard of people using the kinds of devices you may have seen on crime TV shows to catch their spouses cheating.
Why hire a private investigator when you can do it yourself? The answer is not so simple, and the net result of trying the DIY approach could pose a greater risk of getting you into real trouble than any potential gain it may yield for you.
How Can Evidence of Their Affair Help Me?
Aside from the worry and angst versus peace of mind considerations, why would evidence of an affair be of any importance? Would a judge really care if your spouse cheated on you?
Evidence of infidelity can have a big impact in certain family law proceedings. For example, alimony, if the “supporting spouse” cheated, might be awarded to the other spouse. On the other hand, if the “dependent spouse” cheated, the supporting spouse might be forgiven from having to pay alimony.
Evidence of marital misconduct is also a factor that the court can consider when making determinations about equitable distribution of property and child custody.
Evidence of an affair can impact your case simply by giving you leverage. If your spouse knows you can prove marital misconduct, they may be more agreeable to reaching a settlement without litigation, or they may be more willing to compromise over splitting certain assets.
Is Recording My Spouse Illegal?
There is a federal law which prohibits recording and spying on your spouse.
The Electronic Communications Privacy Act and the Stored Communications Act make it illegal to intercept or gain unauthorized access to certain types of information. There are two relevant subsections. The first, referred to as “Title I,” discusses interception of wire, oral, or electronic communication. “Title II” deals with unauthorized access to electronic communications held in electronic storage.
Title I is involved if you are using a voice activated recording device or certain types of email spyware, and Title II is involved if you “hack” into your spouse’s email account.
The Tennessee wiretapping electronic and surveillance and act covers much of the same ground as the federal law above. It prohibits interception of wire, oral, or electronic communications.
Tennessee also has laws regarding computer-related crimes that prohibit unlawful access to another person’s computer, system, program, or network without authorization. These laws tend to mirror Title II of the federal law of 1986.
You should also know that Tennessee common law recognizes several privacy tort claims that may also apply. “Intrusion upon seclusion,” a bookish way of saying invasion of privacy, is recognized in Tennessee as grounds for a lawsuit. Tennessee also recognizes other torts that may possibly apply depending on the situation, including trespass and intentional or negligent infliction of emotional distress.
What are the practical considerations?
You might be wondering if courts really impose these statutory sanctions, in other words could I go to jail? It's unlikely that the federal government is going to bring a case against you for illegal surveillance of your spouse. Their efforts with regard to the wiretapping laws are obviously focused on anti-terrorism, organized crime, drug trafficking, and the like. However, your disgruntled spouse may press charges under state law by filing a complaint against you under either statute, or sue you for common law tort damages. Your spouse may be more inclined to take this action if they are angry or embarrassed that they were caught, if evidence of the affair made a major impact on custody or alimony, if you have threatened to sue the paramour, or if they truly felt like their privacy was violated.