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Don't spy on your spouse without knowing what's legal

Many spouses see the early signs that their husband or wife is cheating on them—secretive phone calls, long hours on the computer in the middle of the night, unexplained absences—and start thinking about divorce. Many of them also start thinking about how to get evidence of their spouse's extramarital affair, either because they believe it will help them get a better divorce settlement or they simply want rock-solid proof before they call their spouse out on infidelity.

While modern technology has made it easier than ever to catch a cheater, it has also made it easier to get caught up in state and federal laws that make snooping on a spouse illegal.

For example, an Illinois woman is facing a lawsuit by her husband for violating the federal Wiretapping and Electronic Surveillance Act. The two have been locked in a contentious divorce, during which the woman accused her husband of serial infidelity. When asked to prove it, her attorney produced a stack of email correspondence between the husband and other women. The husband claims he didn't know that his wife had access to his email until they showed up in discovery and believes she used an automatic forwarding program to get them.

While the judge ruling on the case acknowledged that Congress probably didn't intend the Federal Wiretap Act to be used as a tactical weapon in a divorce proceeding, he allowed the suit against the wife to proceed.

When it comes to spousal spying, there are a lot of gray areas in the law. Generally speaking, you can legally access something if there's no reasonable expectation of privacy. For example, if your spouse keeps his email account open on the family computer, where it could be accessed by anyone who happens to click on the account. If the email is password-protected, however, hacking into the account by guessing the password could put your over the line of legality.

Similarly, if you jointly own a car, putting a GPS tracker on your own car is probably okay, but putting a tracker on a car that's only in your spouse's name is not.

Because of the complex issues involved, you may want to get the advice of an attorney before you decide to investigate your spouse on your own. He or she can advise you about what is legal and what isn't—and whether the information is even important to your case.

Source: ABA Journal, "Wife's unauthorized access to husband's emails could violate Wiretap Act, 7th Circuit says," Stephanie Francis Ward, Dec. 21, 2016

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