Using spyware in a divorce might seem like a good idea, but it is the worst idea you ever had. In the digital age, it has become easier to track people. Don’t do it, Judges will punish, often brutally, the party who has used spyware or GPS trackers on their spouse. It is also illegal and you can go to jail. Using Spyware or GPS tracking is an invasion of privacy during a divorce.
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Unethical Conduct in a High-Conflict Divorce
In high-conflict divorces, emotions run high, and parties may resort to unethical and illegal tactics to gain an advantage over their spouse, such as using spyware. One such tactic is the use of spyware to monitor the other party’s conversations and gain insight into their legal strategy. However, this practice is not only illegal in New York, but it can also lead to severe consequences, including losing the right to seek equitable distribution of property.
Using Spyware in a Divorce is a Felony
I am asked often, by friends and family. “Is it illegal to spy on your spouse’s phone.” they ask. I reply, “Yes, absolutely. It is a felony!”
New York law clearly states that recording a phone conversation without the consent of at least one party is illegal. The state allows recording a conversation if done by one party to it, meaning that a person can record their own conversations without the other party’s knowledge. However, a third party cannot legally record a conversation, even if they are not participating in it. This is a criminal offense punishable by jail time.
Courts Have the Power the Punish a Person Who Uses Spyware in a Divorce
In the case of the litigant who bugged his wife’s telephone, he violated this law by installing spyware on her phone without her knowledge or consent. The spyware allowed him to listen to conversations between his wife and her attorney, giving him an unfair advantage in the divorce proceedings. However, his actions backfired, and he ended up losing the right to seek millions of dollars in equitable distribution.
The use of spyware in a divorce is not only illegal but also unethical. Divorce judges take a dim view of parties who engage in such behavior, particularly when the purpose is to intercept conversations between a litigant and her attorney. In the legal profession, attorney-client privilege is sacrosanct or to be meddled with and must be protected at all costs. A party who violates this privilege by spying on their spouse’s conversations with their attorney risks severe consequences.
The consequences of using spyware in a divorce can be severe. In the case of the litigant who bugged his wife’s telephone, the judge denied him the ability to seek any monies or property in the divorce. This decision meant that the husband, who might have had a shot at a lot of money, lost everything because he used this spyware. This severe punishment sends a clear message that the courts take a dim view of parties who resort to unethical and illegal tactics in a divorce.
If Spyware is Found, the Judge Can Adjust Equitable Distribution.
The Equitable Distribution Statute allows the judge to adjust the distribution of marital property from 50/50 to any other percentage. One of the factors the court can consider is the use of Spyware and tracking devices. The basic law for equitable distribution can be found here. Note, the court can consider any other factor. Using Spyware in a divorce, or GPS tracking are such factors.
Further, the court could determine that the use of Spyware or a GPS tracker constitutions a form of domestic violence. This article discusses that under New York Law the court can consider Domestic Violence in dividing property.
Using Spyware in a Divorce Will Damage the Children
The use of spyware in a divorce also has serious implications for the relationship between the parties. Divorce is already a traumatic experience, and spying on one’s spouse only serves to heighten tensions and mistrust. Such behavior can have long-lasting effects on the parties and their children, causing emotional harm and damaging relationships. It is essential to remember that a divorce is a legal process that requires parties to act in good faith and follow the law. The use of spyware goes against these principles and undermines the integrity of the legal process.
“But, She’s Committing Adultery.”
Too many people, not doubt having watched too much television, believe that adultery is important in a divorce. It is not. A hundred years ago an adulterer lost property rights and custody. This is the 21st Century. Adultery has no impact on property division in a divorce. It also has very, very, limited impact on custody.
For example, in one case, the wife moved the husband out of the house and moved the boyfriend in. There were 3 children of the marriage. The judge who was made aware of the situation still ordered the husband to pay child support, spousal support, and the mortgage while the divorce was pending. Yes, the husband paid for the privilege of having another man live in his house, sleep in his bed, eat his food, and sleep with his wife.
In another case, the husband tapped the house landline, because he was convinced that his wife was cheating on him. She found the tap, called the police, and had him arrested. He was charged with a class D felony. He pled guilty to a felony.
Finally, and to beat this point home, if your spouse commits adultery, you will not get the house.
You Can’t Sue Your Spouse
You can’t sue your spouse for an invasion of privacy during divorce because a divorce is about settling all issues between you, to include this one. As discussed above, the Judge has a great deal of power to adjust how property will be divided. One of the factors that the judge can consider is the use of Spyware or GPS trackers.
Conclusion
In conclusion, the use of spyware in a divorce is illegal in New York and can have severe consequences for the parties involved. Parties who resort to such tactics risk losing the right to seek equitable distribution of property and facing criminal charges. Moreover, the use of spyware undermines the integrity of the legal process and damages relationships between the parties. It is essential to act in good faith and follow the law in a divorce to ensure a fair and just outcome for all involved.
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