By Robert L. Mues   |   November 9th, 2013

Avoid Legal Trouble, Consult With An Experienced Family Attorney Before You Spy On Your Spouse!

spyA husband or wife can get themselves into some messy legal situations when they spy on their spouse.  Often, the best way to combat this situation is through communication.  Clearly, if you’re suspecting your spouse of somehow breaking the marriage vows, then you’re faced with trying to improve communications (at the very least).  Perhaps entering into marriage counseling together would be beneficial.  If these efforts have failed, there are a few steps you can take to avoid criminal situations when it comes to spying on your spouse.

  1. Tape-Recording:
    Tape recording is a tricky technique to master.  The Federal Wiretapping laws allow for some type of recording, but in order to satisfy this statute and avoid criminal prosecution, you must follow specific steps.   You have to make sure that you’re only recording your spouse in conversations to which you’re a party.  You CANNOT record your spouse speaking with another person.
  2. In Home Surveillance:
    Videotaping inside your home is permissible under the law.   This situation has arisen in a few cases in Ohio, and the courts seem to have a hazy grasp on it.  In some situations, you’re only able to record in your home when you are also in the home.  This may render video spying irrelevant unless you have a very arrogant cheating spouse.  I had a case a number of years ago where the wife installed video equipment in the basement to spy on her spouse.  Believe it or not, the husband would bring his “girlfriend” into the marital residence at night while his wife and child were upstairs asleep. We used the video recordings successfully in Court to have him put out of the house while the case was pending!
  3. Email Access:
    Generally, email access is considered illegal unless authorized by express or implied consent.  This standard is somewhat vague, as saving your password on your home computer or iPad can be seen as implied consent for whoever uses these devices.  While if you’re caught accessing emails from your wife/husband’s personal cell phone, work computer, or any other device that isn’t generally “open to the family,” then you’re breaking the law, and may be held liable.
    This is a frequently debated topic.  In 2001, a New Jersey court heard the case (White v. White) where the husband was accused of hiring a computer professional to copy emails from the wife’s hard drive over to his.  The Jersey court held that the Federal Wiretap Laws ONLY apply to situations where a communication is in transmission.  Keep in mind this is the federal law, as your home state often has laws that prevent unauthorized access to computers as well.  Take for example, the Michigan case where the husband is currently facing criminal charges for uncovering that his wife was having an affair.  He was charged under the Michigan statute that makes it a felony to access computer files without authorization.    In Ohio, the law prevents access unless implied or express consent is given, and you cannot be accessing with intent to defraud.  This creates a somewhat stronger barrier against liability from in home email access.
    Overall, you would be best to fare away from email access, as you could be held liable under various laws.
  4. Public Areas:
    In the United States, public areas are often viewed as unrestricted.  For instance, you’re allowed to video tape or take photos of people as long as you’re both in public areas.  While you don’t want to go as far as stalking or generating fear, you’re well within your rights to travel to these areas and discover what your spouse is doing.

Spy On Spouse Conclusion:

Concluding this article with some perspective seems fitting.  The above spy methods are generally acceptable, but be sure to check with an experienced family lawyer in your area before doing so.   Certainly, they are not conducive to building better communications or trust.  If you believe that your spouse might also be hiding assets, we have written a whitepaper on the subject that you can download at no cost from here.

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

Spy on My Spouse? Is It Legal In My Marriage?
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