All Family Law, All Around the WorldSM

Spy versus…Spouse?

On Behalf of | Apr 14, 2016 | Divorce

Did you read the blog post I wrote inspired by the Japanese drama I was addicted to, “Divorce Chaser”? It was a good one analyzing a some of the differences between Japanese and American concepts in the world of family law. On that drama, the attorney has a woman in his employ who’s a private investigator, often following clients’ philandering spouses and gathering information to show wrong doing. This isn’t so different from what a lot of private investigators in America do as well; we’ve all seen the show “Cheaters”, right?

Well, what happens when it’s the spouse acting as a private investigator? Following their partner, audio recording them, or even downloading software to their computer to track their online activity? Some of it sounds reasonable, some of it may sound crazy. What are the boundaries in the world of family law: does spy law apply? Is there a right to privacy between life partners?

Well, to that last question, most of my Facebook friends says “Yes, there is a right of privacy between life partners!” But what about if one of you is cheating? Does privacy still apply? Can the cheating spouse get away with anything because it would be wrong to snoop?

The answers to these questions, as is so often true of family law, depends upon the circumstances. I wouldn’t likely advise any client to tail their partner. This could result in an altercation or put my client into a dangerous position. Furthermore, Georgia does have laws regarding stalking, identified as “a pattern of behavior by one party that results in the harassment and intimidation of another party”. O.C.G.A. § 19-13-1 or O.C.G.A. § 16-5-90. The last thing I want is my client to be on the receiving end of a Temporary Protective Order.

What about audio recording? This one is really common. Nowadays, you can even get apps on your phone that will record certain calls and conversations. Georgia’s audio recording, or “wiretapping”, law is called a “one-party consent”, in that it’s a crime to secretly record a phone call or in-person conversation that originates in a private place, unless one party to the conversation consents. O.C.G.A. § 16-11-62(1),16-11-66. This means that if I record a conversation with my spouse, it’s allowable and otherwise not illegal so long as one of us (me, of course) consents to the recording. However, it would be illegal for me to record conversations with my spouse and his friend without either of their consent, unless I’m a party to the conversation, too.

Finally, is it illegal to hack into your spouse’s computer? Could you use that information in court? The answer to this is two-sided. Yes, it is illegal to hack into someone’s computer, including your spouse. However, in the world of family law, the “fruit of the tainted tree” rule does not necessarily apply. In criminal law, a party isn’t allowed to use information obtained illegally – it’s inadmissible. However, judges have discretion in family law to hear this type of information. This is why in your divorce case, a judge may hear evidence you obtained about your spouse’s online activities via not-so-legal methods. That being said, there’s no guarantee a family law judge will entertain your fruit of the tainted tree. In fact, bad conduct on your behalf may actually leave a bad taste in the judge’s mouth. Bad fruit, indeed.

As an attorney, I talk about controlling the narrative for the judge; being the weaver of the story the judge is hearing. That’s not to say that you shouldn’t play some “spy games” during the course of your domestic action. A lot of what we do in the law is information gathering: taking pictures of property or bruises or living conditions, recording phone calls from verbally abusive spouses, going to the bank and getting statements of the joint account. So it’s okay to be a spy, but always remember who your audience is: the judge and, maybe, the jury.

Just remember, you want to be the good spy. Not the bad one.

Megan McClinton