Spyware & Your Divorce - What You Should Know

Spyware are computer programs that record or “log” anything that’s typed on that computer. If spyware is installed on your computer, the person who installed it can see everywhere you go on the internet, every email you type, your passwords, every search you do, and any interaction you have online. It also tracks anything you type on your computer itself, such as a Word document or a spreadsheet.

The person managing the spyware can watch you in real-time and/or see everything you’ve done after the fact. As you can imagine, spyware is sometimes used during a divorce in an attempt to gather damaging evidence or prove the existence of undisclosed assets.

Types of Spyware

Many kinds of spyware that can be deployed to track a person’s digital life. For example, a keystroke logger is connected to the keyboard and records everything typed on that keyboard. It’s a small cylinder attached between the keyboard and the computer, which means you can actually see it.

Less easy to detect is spyware via software programs. It could be installed by someone who has hands on your computer or device, or it could be sent to you via email or text. If you click on a link in the email or receive a text with the spyware, it activates itself and becomes embedded in the software on your computer. It records everything you do, and it also allows the other person to access your computer remotely and change or download information from it. This type of spyware can also be loaded onto your phone or tablet to monitor and record your activity on those devices, accessing your online browsing, email, texts, and apps.

Spyware Laws

Spyware is an emerging area of law. There are times when spyware is legal, such as putting a program on your child’s computer that allows you to see what your child is doing online. The federal Electronic Communications Privacy Act makes accessing someone’s email or their own social media accounts without permission illegal. Other spyware may not strictly be illegal, but using it during a divorce is a bad idea.

Why You Should Never Use Spyware in Divorce

Some people try to justify their use of spyware during a divorce saying the computer is marital property or that there are no actual laws that forbid it. However, using spyware during your divorce is a terrible strategy and one that is certain to backfire.

First of all, spyware may be considered stalking or harassment and could provide the evidence for an order of protection against you. Orders of protection can come with severe consequences as they can determine temporary occupancy of the marital residence as well as temporary child custody and support. Violating an order of protection can result in jail time so it is simply not worth it to risk placing yourself in this position.

If you obtain evidence for your divorce case using spyware, your attorney and the court will need to know where it came from and how you accessed it. This can not only place you in legal jeopardy, but it can tarnish your image in the eyes of the court, labeling you as someone who will stop at nothing to win the case. Once the judge thinks you’re sneaky and underhanded, it can hurt the rest of your case, even if you act in good faith in other instances. In most situations, information that you obtain through spyware will not be admissible in court, so you will place yourself at great risk and have nothing to show for it.

If you suspect there is evidence your spouse is not disclosing that would help your case, the better course of action is to talk with your attorney about it. They can subpoena the evidence and bring in computer and forensic experts to locate it, which keeps your hands clean and your actions completely legal. It also ensures that any evidence that is gathered will be admissible in court and will help your case.

How Can You Know if You are a Victim of Spyware?

There some telltale signs that your spouse has used spyware to access your information:

  • Files have been changed or deleted from your computer
  • Personal information (such as mailing addresses and phone numbers) have been changed on your accounts
  • There is activity on your financial accounts you are not responsible for
  • You can’t get your device or computer to turn off or restart
  • You receive text messages with unfamiliar characters in them
  • Your browser history does not match your recent activity
  • Your computer or phone is rebooting without your command
  • Your passwords have been changed
  • Your phone screen lights up even when you are not receiving a notification
  • Your phone shows unusually high data usage
  • Your spouse has information about things they could only know unless they accessed your email, texts, apps, computer files, or online activity
  • You’re using up your battery more quickly than before

If your computer, phone, or tablet is accessed or used by anyone else in your household (such as children) or was accessible by your spouse before you separated, you should assume that your spouse has full access to anything you do online and on that device. You can check your camera and microphone settings on your phone to see which apps have access to your information. If you believe you may be a victim of spyware in your divorce, talk with your attorney who can help you determine what your next steps should be.

In general, spyware will hurt rather than help your divorce case, so it is a good idea to avoid it at all costs. If you have concerns about hidden assets or information, talk with your attorney before taking any actions on your own.


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

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