Spousal Spying: Proving Your Spouse’s Affair

Recent changes in your spouse’s habits and routine can lead to a nagging suspicion that they may be having an affair. The man who never paid much attention to his grooming habits or what was “in style” has unexplainably gotten a new haircut and updated his wardrobe. The woman who never put her career above her family is now spending more late nights at the office and joining her co-workers for happy hour on a regular basis. Maybe your spouse has become secretive with their computer or recently added a passcode on their phone. Such changes in behavior may awaken your inner Sherlock Holmes and force you to go searching for that smoking gun to confront your spouse with. However, such detective work can lead to serious legal trouble.

Going through your spouses email account may not be a good idea, even if you think they are having an affair.

Going through your spouses email account may not be a good idea, even if you think they are having an affair..

It may be tempting to record your spouse’s conversations or download spyware onto their computer in order to access their emails and other activity. However, the North Carolina Electronic Surveillance act makes it illegal to intercept wire, oral or electronic communications and access another’s computer or network without authorization. Further, there are several tort claims, such as “Intrusion upon seclusion,” which also prohibit such activity. The bottom line is, you can be charged with criminal violations for such actions and then found liable in a civil suit.

But, like any rule, there are always exceptions. A little thing referred to as “vicarious consent” allows you to record conversations with your spouse so long as you are also a party to the conversation. Additionally, you are permitted to record your spouse’s conversations if you have a reasonable belief that your children are at risk of harm and you are acting in their best interests.

But what about nanny cams? The law only acts to protect the interception of oral recordings. Meaning that so long as the recording does not include any audio (and you own the property or have been given permission), you’re free to record the activities of another inside a dwelling.

If your spouse has suddenly become secretive about their phone conversations or text messages, going through their phone may provide all the evidence you would ever need to prove their affair. But should you? Since there is not any North Carolina case law on point regarding such activity, it generally comes down to authorization. Do you know your spouse’s password and use their phone regularly to make calls or text people, check bank accounts, or play games? If yes, then generally your spouse has authorized you to access such information on the phone.

However, it should be noted that this is not the same as taking a lucky guess (or guesses) at your spouse’s passcode and gaining access. I frequently hear the “I have access because I pay the bill” argument. This is also not the same as being authorized. Your spouse is not your teenage son or daughter.

The Cloud sharing features available with Apple devices also leads to some sticky situations. For example, your text messages and emails that are coming to your phone may be synced with the family iPad unbeknownst to you. If you wouldn’t be authorized to obtain such information from your phone, then I generally advise my clients not to access it on the family iPad.

What if your spouse is spying on you? First, if you’re having an affair, end it. Such liaisons carry consequences in your divorce case and may open your paramour to civil liability. It is all to common for such spousal spying to occur as a way to control one spouse or intimidate the spouse into acquiescing to the other’s demands. Change your passwords and access codes to something random you believe your spouse would never guess. If you suspect your spouse has installed spyware or keystroke software on your computer or phone, take it to a retailer for a diagnostic check and removal. If your spouse knows where you are at all times or you “casually” happen to run into them while running your usual errands, you may have a tacking device or GPS locator on your car. Most dealerships or auto body shops should be able to locate and remove such devices. The most important step in these situations is to consult an attorney.

Your suspicious feeling that your spouse is being unfaithful may be inaccurate. No matter how tempting, the satisfaction of verifying your spouse’s affair may be outweighed by the criminal ramifications and civil liability that could follow.. The bottom line is that if you feel like your actions may be a violation of your spouse’s privacy, it probably is. If you suspect that your spouse is having an affair, or that your spouse is violating your privacy, trust the attorneys at Lake Norman Law Firm to provide you with Smart Honest Legal Advice to protect your rights and interests.

Written by: Ashley Bonomini