Click the link above to read a to-the-point article that gives smart advice about questions that you might be pondering if you are going through a divorce, especially with kids. Be sure to brainstorm and keep a list of important questions and topics that you want to review with your lawyer before your next meeting. Lawyers can’t read minds — if an issue is important to you, bring it up so that we can help you address it.
Another form of snooping that some suspicious spouses might be tempted to employ is placing a GPS tracking device on the spouse’s car to track his or her whereabouts. But before you start fantasizing about spying like Jack Bauer (or Sydney Bristow, for the ladies), it is unclear right now whether this form of spying on your spouse is permissible. On this subject, the law has not yet caught up with technology.
In US v. Jones last year, the Supreme Court addressed whether the government may use GPS devices hidden on vehicles to track the activities of criminal suspects. The Court found that using such a device does constitute a search under the 4th Amendment, so police are generally required to obtain a warrant in order to place a GPS device on a suspect’s vehicle.
When it comes to you and your spouse, some lawyers disagree about whether the Jones decision would apply to using a GPS device to track a family member. There is no law on this subject yet, and it is unclear how courts will rule. In the family law context, the question boils down to two issues: (1) ownership and (2) expectation of privacy.
If you own the car, it is titled in your name, and you are not separated from your spouse, then you most likely have legal authority to install a GPS device on the car. The same would be true if you wanted to track your spouse using a phone GPS app — if you own the phone, it is registered under your name, and you are not separated from your spouse, you can probably install the tracking app without being in any legal trouble.
Expectation of Privacy
If, however, you do not own the car or phone, it is not titled in your name, or you are separated from your spouse, then your spouse may very well have an expectation of privacy in his or her car and phone. While North Carolina courts have not specifically addressed this issue, you should think twice about using GPS under these circumstances because your spouse may have grounds to sue you for several torts. You could potentially be liable for money damages for invasion of privacy or trespass if you violate your spouse’s expectation of privacy.
Both technology and the law are constantly changing. If you are thinking of using a GPS device to track your spouse, talk to a lawyer first about where the law stands at the time and how your actions might affect you and your legal position in the future.
This is a really insightful article from About the Children with really smart advice about how to work with your lawyer to make things go as smoothly as possible in your case. The keys to a good, productive attorney-client relationship are respect and honesty. Making sure your attorney has all of the information he or she needs, even if it could be damaging to your case, is very important.
Email is one of the primary ways that we communicate today. If you are suspicious of your spouse’s activities, or just thinking about separating and looking for information that might benefit you, checking your mate’s email messages is likely one of the easiest ways to keep tabs on his or her activities. Not only might you find racy emails between your spouse and a paramour, you might find hotel confirmation emails, paperless credit card statements, or legal and financial information that your spouse was hiding. Between computers, phones, and tablets, it might be easy to sneak a peek at your spouse’s inbox. But is it legal? And if you find something useful, can it help you? It depends on your situation…
One way that you can get into another person’s inbox is to use spyware. This is software that “spies” on the computer on which it is installed. There are different types of spyware — some send you copies of emails that go in and out of the target’s mailbox, some track internet usage, and some capture every single keystroke. Depending on your level of tech-savvy, spyware can be cheap, easy to use, and hard to detect. It is also, however, illegal. Various types of spyware may violate ECPA Title I, Title II, or both. Don’t waste your time on this type of snooping — your attorney won’t even want to hear what you find out if it was obtained illegally.
Title II of the ECPA covers unauthorized access to electronic communications that are held in electronic storage. This means that unauthorized access to emails stored on your spouse’s computer, phone, or tablet is illegal under Title II. Thus, the question to ask yourself if you’re considering email snooping is: “Am I authorized to access my spouse’s email account?” This may seem like a simple question, but it can be quite tricky.
Whether your spouse’s work computer is at the office or at home, you should refrain from snooping. A work computer might contain sensitive client or other work-related information, in both email and other files and programs. Your spouse’s privacy is not the only concern — other’s people’s privacy may be violated as well. The potential for illegally or unethically exposing confidential information is too high — just don’t do it.
If your spouse isn’t creative or careful in creating passwords, you may very well be able to guess the password or answer the security questions to gain access to email. Again, the important question is whether you have authorization to look at the email account. Just because your spouse is predictable or you have a great memory, does not mean that your spouse has given you authorization. Thus, this type of access would not be permitted under Title II.
Imagine that your wife is travelling for work and realizes that she has left an important document on her laptop at home. She calls to ask you to log in and email the document to her, and she gives you the passwords to do so. She gave you permission and passwords to use her computer, so you must be authorized to take a peak at her email a week later when she leaves her laptop at home again, right? No; your authorization was limited in time and purpose to the day she asked for your help and the documents she asked you to find. If you go searching through the hard drive and emails a week later, you do so without authorization and in violation of Title II.
If, however, your spouse gave you her email password, knows that you have it, and knows that you use it regularly, you may have authorization. If she changes her password without telling you the new one, then your authorization is likely revoked. The difference between the situations described above is between a pattern of acknowledged access (probably authorized), and an isolated grant of access followed by unacknowledged reentry to the account (probably unauthorized). Obviously, the question of authorization can become very complicated under some circumstances, and both parties might have strong arguments that access was or was not authorized. When in doubt, talk to your lawyer, and ask yourself whether peeking at your spouse’s email feels like spying. If it feels like you are invading your spouse’s privacy, then you probably are.
Smart Phones and Tablets
Do the rules for checking your spouse’s email change if the access is on a phone or tablet? You don’t need a password to open the email app, so it’s basically wide open and fair game, right?
This issue also comes down to authorization. If your spouse gave you the passcode to unlock the phone and knows that you use the phone with some regularity, then tapping to open the email app is probably authorized. But if you merely guess the passcode and normally do not use the phone, then you are still not authorized to snoop through the email or other programs. Also, you must be very careful about your spouse’s work emails that may contain confidential information about your spouse’s work or clients.
Technology and tech security are always changing, so there is always gray area about whether access is authorized under the circumstances. Once more, the best course is to ask yourself whether it feels like you are snooping and invading your spouse’s privacy. If so, err on the side of caution and stay out of the email!
It seems like everyone is on Facebook today, doesn’t it? Your spouse probably is. Your wife’s high school boyfriend might be. Your husband’s buddies who know what went on at that Vegas bachelor party are. Between the chat function, private messages, and reckless over-sharing status updates, there is vast opportunity to find information that your spouse or opponent might not want you to know. So, if you are involved in a separation, divorce, or custody dispute, can you snoop in the opposing party’s Facebook account?
The information posted on your spouse’s Facebook “wall” that is readily visible to you and his or her other Facebook friends, is fair game. There is no expectation of privacy in these types of posts since they are put on a public forum for everyone to see. If an incriminating post or picture appears, print it out and show it to your lawyer. The printout may or may not be admissible in court, but you and your lawyer will at least have it to consider.
Private Chats and Messages
When it comes to private chats and messages on your spouse’s Facebook account, it is a bit more difficult to know whether you might be violating the law. This is a Title II question and ultimately comes down to authorization. Your ability to legally access the Facebook activity depends on whether, and to what extent, your spouse has authorized you to access his or her Facebook. We’ll address the issue of authorization in more depth in terms of accessing your spouse’s emails, but when it comes to Facebook, if your spouse knows and has given you permission to log on to her Facebook account in the past (and has not since changed the password), then you probably would not be violating the wiretapping statutes by logging in and looking around.
If, however, you simply know your spouse well enough to guess her password or correctly answer her security questions, then your access is unauthorized and illegal. Using a spyware program that tracks chats, messages, or passwords is also illegal. Thus, the safest course is to limit your snooping to the public posts of your spouse or anyone else you suspect of improper behavior. Immediately print out any important information you find, since it could be deleted later. If you are not sure whether you can legally access your spouse’s account, err on the side of caution and don’t look. Talk with your lawyer about Facebook (your account and your spouse’s), and be prepared to answer truthfully questions about access to both accounts.
It shows up in both movies and real life all the time: a stray text message, Facebook chat, or email is seen by the recipient’s husband or wife. A secret is exposed that blows up a marriage or relationship. Whether you have a solid reason to suspect your spouse is cheating or are just feeling suspicious or insecure, it seems that technology has made it easier than ever to check up on your spouse’s activities. With all of the resources available – nanny cams, GPS tracking devices, spyware, voice recorders, etc – it is sometimes difficult for both lawyers and clients to know what kinds of spying are admissible in court, and more importantly, which ones are legal for you to use. If you are determined to look for proof of infidelity or other bad behavior by your spouse, you must be careful about the methods you use – some forms of snooping and eavesdropping could expose you to criminal charges. There are both federal and state laws that limit the ways you can check up on a cheating spouse.
The Electronic Communications Privacy Act (ECPA) of 1986 extended certain wiretapping laws to cover electronic data that is transmitted by computers. It makes it illegal to intercept or obtain unauthorized access to certain types of information. Two subsections of this law are important in the context we’re discussing. Title I applies to the interception of wire, oral, or electronic communication. Title II applies to the unauthorized access to electronic communications that are already held in electronic storage.
You might reasonably think that federal wiretapping statutes are aimed at controlling how the government can investigate terrorism or racketeering. That’s true, but they can also apply to a private citizen trying to catch a cheating spouse. Title I is implicated, for example, if you use a voice recorder to tape a phone call or some form of spyware to intercept your spouse’s emails. Title II is implicated if you “break in” to your spouse’s email or Facebook account.
North Carolina has an Electronic Surveillance Act that provides much of the same protection as Title I – it prohibits interception of wire, oral, or electronic communications. We also have laws that are similar to Title II and prevent unauthorized access to another person’s computer, system, program, or network.
State law also provides several privacy-related tort claims that your spouse could possibly bring against you if you access his or her communications without permission. Intrusion upon seclusion is one claim; others could potentially include trespass and intentional or negligent infliction of emotional distress.
In the next few blog posts, I’ll discuss how these laws may apply to specific methods of spying on your spouse. In the meantime, the most important takeaway is to know that certain types of snooping are illegal and some might expose you to lawsuits. Before you do any questionable snooping, research what the law says and talk to your lawyer.
When a judge is deciding on custody issues in North Carolina, the standard he or she must consider is always the “best interests of the child.” It is no different when it comes to the sex lives of the child’s separated parents – the question is whether the parents’ sexual relationships are affecting the best interests of the child. So, sex during separation can certainly have an effect on custody if it impacts the child. This will depend on the circumstances of the relationship. If a parent, for example, engages in sex with numerous partners while the child is in the home, it would not be surprising for a judge to decide that the parent is not acting in the child’s best interests. Circumstances vary, but especially when your kids are involved, it is wise to err on the side of caution. During the separation period, the safest course is to keep any sexual activity confined to times when your child is staying at the other parent’s house. Being responsible and aware of what your children see is both good for your kids, and good for your custody case.
Discovery & Court Testimony
Discovery is the process of both sides gathering information before a court proceeding. This is done through interrogatories, which are written questions that require written answers, and depositions, which are out of court testimony under oath. Depositions usually take place at an attorney’s office, and a court reporter is present to make a transcript of the testimony. In family law cases, questions about the parties’ sexual relationships are common in both discovery and court proceedings. As we’ve seen during this discussion of sex during the separation period, sexual behavior can be relevant to multiple issues during divorce and custody proceedings. Opposing attorneys might also ask intimate questions to put you on the defensive. Thus, sexual and relationship questions are likely to arise during your case. As unfair and invasive as it may seem, your personal life is not necessarily private during a divorce, so you and your lawyer must be prepared to face questions about your behavior, possibly from both a judge and the opposing party.
Bottom Line: Should I, or Shouldn’t I?
So, over the course of three posts, we’ve addressed a number of issues that can arise from having a sexual relationship while you are separated from your spouse. Divorce is complicated – emotionally, financially, and legally. Be honest and realistic with yourself about this issue: sex will most likely make your divorce process even more complicated. Understand and consider the consequences that can follow from your decision. Emotions run high during divorce, and moving on too quickly can make it more difficult to resolve the issues that you and your spouse face. Your best bet is to focus your energy on getting through the separation and resolving the remaining issues of your marriage; save the dating and sex for after the divorce.
Sex during the separation period can potentially be a big problem for a dependent spouse who plans to ask for alimony. Marital misconduct can be an important factor in the outcome of alimony claims in North Carolina. While having a sexual relationship after the separation does not constitute marital misconduct, a judge might consider it to be corroborating evidence that an affair was going on before the date of separation. In an alimony case, the dependent spouse is the one who receives alimony, and the supporting spouse is the one who pays alimony. In North Carolina, a dependent spouse who would otherwise be entitled to alimony is completely barred from receiving alimony if he/she had an affair while the parties were living together. Likewise, the supporting spouse may enter a sexual relationship after the date of separation without affecting his/her duty to pay alimony, but the Court could consider it as corroborative evidence of an affair before the separation. This use of post-separation sex to corroborate an allegation of marital misconduct can particularly become an issue when each party is trying to prove that the other had an affair for alimony purposes.
Under North Carolina law, alimony and post-separation support that have been awarded to a dependent spouse terminate when the dependent spouse remarries or engages in cohabitation. North Carolina General Statute § 50-16.9(b) says that “[c]ohabitation is evidenced by the voluntary mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, and which include, but are not necessarily dependent on, sexual relations.” So a sexual relationship that the Court might see as evidence of cohabitation can lead to the early termination of alimony and post-separation support. If alimony and post-separation support are an issue in your case, talk candidly with your lawyer about protecting your claims if you are involved in a sexual relationship.
“Heart Balm” Lawsuits
If you have lived in North Carolina for long, you might have heard that we are one of a handful of states that allow a spouse to sue the person with whom their spouse cheated. These actions are called “heart balm” actions, presumably because they are supposed to help heal the heart of the jilted spouse. The first cause of action is called Alienation of Affection, in which the person who files the suit must prove that a third party caused his/her spouse to lose affection for them. Sex does not have to be part of this claim, but the courts have ruled that sex before the date of separation can help prove alienation of affection. Just as with alimony, sex that occurs after the parties have separated can be used to corroborate that there was already a sexual relationship before the separation.
Of the two heart balm torts, Criminal Conversation is an easier claim to prove than alienation of affection, because the jilted spouse who files suit only has to prove that extramarital sex occurred and that he/she was legally married when their spouse was having sex with the third party. Once again, post-separation sex can be used to corroborate conduct that occurred while the couple was still living together. The bottom line is that you should know that engaging in sex while you are separated from your spouse could place your sexual partner in jeopardy of a lawsuit.
This is the first post to the Hickory Family Law Blog, so let’s jump right in with a common and controversial topic: when is it okay to have sex after you separate from your spouse? This issue comes up often as people transition from married life back to being single. Dealing with the hurt and pain that usually accompanies divorce, in addition to the practical issues like finances and custody, makes this is a tumultuous time for many people. North Carolina requires a one-year separation period before spouses can file for absolute divorce. During this separation period, it is not unusual for one spouse to want to hold on to the marriage, while the other is ready to move on with life and begin dating again. It is important to know that sex during the separation can cause many problems and can have a negative effect on your divorce.
Sex With the Ex
Under the North Carolina statutes, isolated instances of sex with your separated spouse do not constitute a reconciliation that would cause the one-year separation period to start over again. Resuming a regular sexual relationship (as opposed to isolated incidents), however, can be one factor a court would consider in deciding whether a couple has “resumed the marital relationship,” thus restarting the one-year period. While you and your spouse may want and mutually decide to reconcile, be aware that resuming a sexual relationship with your separated spouse may have an effect on when the court finds that you were legally separated from your spouse for purposes of post-separation support, divorce, and equitable distribution if the reconciliation is not permanent. With all of the other complicated emotional, financial, and legal issues involved in separation and divorce, having sex with your ex can make things significantly more complicated and confusing. It is important to think about the consequences for yourself and your divorce proceedings before resuming a sexual relationship with your separated spouse. If it has already happened, or you are considering reconciliation, talk with your lawyer about the effect your choices can have on your case.
Now that we have addressed having sex with the person from whom you’re separated, let’s talk about sex with other people. Under North Carolina law, having sex after separation, with someone other than your spouse, constitutes the crime of adultery. Believe it or not, North Carolina General Statutes § 14-184 makes adultery a Class 2 misdemeanor. Enforcement of this statute is rare, but it is common for sex during separation to affect negotiations and lawsuits. A relatively amicable divorce proceeding can turn nasty very quickly if one spouse finds out that the other has already begun a sexual relationship with another person. This can cause resentment and bitterness that may encourage the “left behind” spouse to be more difficult in negotiation and legal tactics. While this law is rarely enforced, committing adultery does mean that you risk having a criminal record, which could impact your job, your custody case, and the judge’s perception of you. While you are separated, it is important to conduct yourself in a manner that will not reflect poorly on you in the eyes of a judge whose decisions have significant impact on your future.