If you are getting a divorce or thinking about filing for divorce, there are likely some moments when you have wondered if you could just record some of the things your spouse has said or done so you could have some proof. You also might think that if you could just access some of your spouse’s emails or online accounts, you would have important proof you could use in your divorce. You could also be considering tracking their movements with a GPS. Before you begin to try to accumulate any of this kind of evidence, it is important to understand the laws that apply to this.
New York is a one-party consent state. This means that a phone call can be recorded as long as one of the people on the call is aware and consents to the recording. This means that you can record phone conversations with your spouse and use them as evidence in your divorce if they are relevant. However, if no one on the call consents, you cannot legally record the call (so, for example, you cannot record your spouse talking to a person they are having an affair with). Messages left on voicemail can legally be used in court since the person leaving the message is aware they are being recorded.
If you are one of the parties in a text chain, then the communications are admissible in court. If you obtain texts to which you are not a party from your spouse’s phone, it is a violation of privacy laws, even if your spouse’s phone is not password protected.
The rules about videotaping in New York are a bit different. You can videotape anyone without their consent as long as it is not considered voyeuristic. Because of this, it is illegal to videotape someone:
- Undressing or dressing or exposing their intimate body parts at a place and time when the person has a reasonable expectation of privacy if they do not have knowledge or give consent and if you do so for profit, amusement, or degradation
- For your own sexual arousal if the person had a reasonable expectation of privacy and did not have knowledge or give consent
- In a bedroom or place where nudity is common without knowledge or consent of the subject
- Under their clothing or in sexual or intimate areas of the body without knowledge or consent of the subject
- Having sex when there is a reasonable expectation of privacy when the taping is done for profit, entertainment, gratification, arousal, or degradation
Given these restrictions, it is legal to videotape your spouse in areas of the home other than the bedroom or bathroom, and videotape them in other locations outside the home.
There’s likely lots of information you could gather about your spouse online and as long as the information is public, such as on Facebook. Google, or reported in the news, it’s fair game for you to use in your divorce. Email and private messaging, however, have protections. The federal Electronic Communications Privacy Act of 1986 makes it illegal to access another person’s email or messages.
Even if you know your spouse’s passwords, using them to access their accounts without permission is considered a violation of this law. If your spouse gives you the password for a specific reason, such as to print something for them or to get a phone number from an email, you can’t use that access to legally see anything else while you are in the account. However, if you and your spouse share one email or social media account, then you can access anything they send or post without breaking the law.
If your spouse has separate banking, investment, or retirement accounts, you might want to know how much they own. Accessing these accounts without permission is a violation of privacy laws. The same holds true for their medical records – they are private, and it is illegal to access them. If a financial account is jointly held, you can legally access it. For everything else, it is important to talk to your attorney who can subpoena all relevant records so that they can be used in your case.
If you suspect your spouse is cheating on you or conducting business involving marital assets in secret, you might be interested in placing a GPS tracker on their car to see where they go. In New York, that is legal to do unless they have specifically told you not to. If they have said not to, then doing so is considered stalking and is illegal.
Installing spyware on your spouse’s computer or phone so you can record the sites they visit, the information they access, conversations they have, or information they store on the device is an invasion of privacy and is illegal. Keystroke recording programs are likewise illegal.
Copying Paper Records
If you have access to your spouse’s private paper records (such as if they are left on a desk or in a briefcase), it is technically a privacy violation to copy them, but it is unlikely this would be prosecuted. Any documents of this nature would be discoverable in the divorce so you would legally have access to them through that avenue. Photographing or photocopying them if you have access can help you evaluate if your spouse’s attorney is completely forthcoming during discovery.
In general, it can be risky business to attempt to spy on your spouse. If you have questions or concerns about evidence gathering, talk with your attorney who can help you understand what it is legal for you to do, what you should avoid, and when it is best to call in professionals to assist with this.