Is It an Invasion of Privacy to Track a Cheating Spouse in a Morris County Divorce?

Divorce is often about secrets. Cheating, hidden assets, and many other issues of privacy can create lack of trust among divorcing spouses and lead to a highly contentious divorce process. In some cases, individuals will go to great lengths when attempting to catch a spouse in the midst of incriminating behavior, deploying private investigators, or even installing GPS on their spouse’s vehicle to track his or her whereabouts. However, if the spouses discovers the GPS device, he or she may file a harassment charge, file for a restraining order, and cite the harassment charge as the underlying grounds for divorce. The additional question in situations of this kind is: what constitutes an invasion of prviacy?  Let’s examine a case involving this issue to understand the current precedential case law in this area.

Can You Legally Track Your Ex with a GPS?

In the case of Villanova v. Innovative Investigations, Inc., 420 N.J. Super. 353 (App. Div. 2011), the New Jersey Appellate Division held that placement of a global positioning system (“GPS”) device in a spouse’s vehicle without his or her knowledge did not amount to an invasion of privacy. In Villanova, during a divorce, the wife hired a private investigator to follow her husband to document his cheating, who advised her to install a GPS device on the family car (owned jointly).  The wife used the GPS evidence at trial for divorce.  Subsequently, the plaintiff-husband claimed that placement of the GPS in the couple’s shared car violated his privacy rights, amended his complaint, and added a claim for intentional or negligent invasion of his right to privacy.  The Appellate Court held that to substantiate a claim for the invasion of privacy, a plaintiff must prove (s)he maintains a privacy interest in the information at issue. In this case, the plaintiff did not have a reasonable expectation of privacy, as  the GPS tracked his movement on public streets.

The Takeaway from Villanova v. Innovative Investigations, Inc.

Villanova demonstrates how the interplay between the law of invasion of privacy and family law remains in a state of flux.  If similar facts were later litigated before new judges, the outcome remains uncertain. The inquiry in matters of this nature is what would be considered a reasonable expectation of privacy, as a prevailing family court issue is what constitutes an invasion of privacy.

In multiple scenarios, the issue is whether the computer (on which tracking software was installed), the phone (on which a bug was placed), or the home (in which a camera was installed), was jointly owned or shared.  If so, most judges will not consider the conduct as an invasion of privacy, because the complaining spouse could not have had a reasonable expectation of privacy for the device or area.  However, many judges could consider this behavior as harassment, attached to a separate claim.

Significantly, if a person hacks into his/her spouse’s work computer, or installs bug software on it, this conduct could be considered grounds for a marital tort involving the invasion of privacy.  If a spouse bugs his/her spouse’s cell phone, this conduct could also be labeled a marital tort, as the married couple did not share the phone.

Intercepting a Spouse’s Emails and Computer Material

Wiretapping violations are abundant, given the proliferation of internet dating, pornography, and consequent divorce litigation.  A spouse looking to prove adultery by retrieving messages from hard drives, internet services, or other areas of storage, may be in violation of New Jersey and Federal wiretapping laws.  Although information obtained to confirm adultery may be invaluable on a personal level, evidence illegally obtained through wiretapping or hacking into a computer should not be used as leverage in a divorce. In fact, the very act of illegal wiretapping may be grounds for a civil suit against the violating spouse, filed as part of the divorce case.  Ultimately, the cheating spouse would benefit from the wiretapping violation, by using same as leverage to for a more favorable divorce settlement.

Contact our Morris County NJ Divorce Lawyers for a Free Consultation

For additional information about how to navigate your New Jersey divorce, contact the Morris County law offices of Townsend, Tomaio & Newmark today at 973-840-8970 to receive a cost-free initial consultation.