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Can I Spy on My Spouse if I Suspect They Are Cheating?

Thomas A. Greenwald | August 23, 2024

Is it legal to put a tracker on a car if I suspect my wife is cheating?

If my husband is cheating, what should I do legally?

Questions like these are complex and multifaceted. For instance, if you suspect that your spouse is cheating, you might think about using a GPS tracker, recording device, or spyware to prove it. These tools are tempting to use, since they are accessible and easy to buy. But it’s important to know whether using these devices breaks the law. Is it legal to put a tracker on a car? Is it illegal to go through your spouse’s phone? Is it illegal to record your spouse without their knowledge? Is spying on someone illegal? This article will explore federal and Texas laws on these issues.

Is it Illegal to Record Your Spouse Without Their Knowledge?

Although Texas law requires only one party’s consent for a recording to be legal, some states require both parties’ consent. Where the parties are located at the time of the conversation usually determines which law applies. If one of the parties is in a state that requires both parties to consent, the recording may be illegal.

Is it Illegal to Open Someone’s Email Without Their Permission?

Federal and Texas surveillance laws address more than just recordings of conversations: they also address unauthorized access to another’s emails. How the law treats these situations may depend on how the information was accessed by a party. There are typically two ways to access an email: intercept it while it is in transit to the recipient’s inbox or gain access to the inbox and read the email once it arrives.

Federal and Texas laws protect unopened and unread emails more than those that the intended recipient has already opened. While accessing another person’s unopened and unread emails without authorization is typically illegal, it might be legal if one has already opened the email. Whether it is legal to access an email may depend on the law in the jurisdiction where the case is being heard. What is legal in one jurisdiction may not be legal in another. Consult with your attorney before accessing anyone else’s email account.

Is it Illegal to Spy on Your Spouse’s Phone?

What about phones? Is it illegal to go through your spouse’s phone? The answer is “it depends.” The legality of going through your spouse’s phone can depend on a few factors, including the jurisdiction in which you live, the specific circumstances, how the information was accessed, and the intent behind the action. However, federal law was updated after the 9/11 terrorist attacks to specifically include emails and voicemails, so tread carefully. Be sure to consult with your attorney before accessing your spouse’s phone.

Is it Legal to Install a GPS Tracker on My Spouse’s Vehicle?

Post-9/11 laws are also a reason why spouses today have the ability to track each other’s location. A year after the 9/11 attacks, the government began requiring cell phones to have location-detecting technology to track 911 calls. Eventually, everyone’s cell phone had location-tracking capabilities. Investment by private companies enhanced the technology to the point where spouses could track each other’s locations through cell phones.

This technology also made it easier to keep tabs on someone’s whereabouts via their vehicle, but is it legal to put a tracker on a car? Again, the answer isn’t always straightforward.

Texas law prevents a spouse from installing a GPS tracker on a vehicle owned or leased by the other spouse. Consult with an experienced attorney before placing a GPS tracker on any motor vehicle.

What Are the Consequences of Using a GPS Tracker, Recording Device, or Other Surveillance Tools?

So far, this article has discussed what is and is not illegal. But it is important to understand the consequences of breaking surveillance law. Illegally recording one’s spouse can lead to serious repercussions. Aside from fines and possible jail time, Texas law requires the victim to receive certain remedies to compensate for the injustice.

Federal law and Texas law also prevent the wrongdoer from introducing illegally obtained recordings as evidence in a family law case. It is highly recommended that you consult with an experienced attorney before recording any conversation.

Can You Sue for Invasion of Privacy?

Those who consider suing another for invasion of privacy must understand the scope of their right to privacy. Court-created law and legislation, not the U.S. Constitution, protects a spouse’s right to privacy. Many people incorrectly believe that the U.S. Constitution protects this right. The U.S. Constitution protects it only when the government violates that right (for example, the police search one’s home without probable cause). When an individual violates one’s right to privacy, only court-created law and legislation protect that right.

Also, a person cannot sue someone for invasion of privacy just because that person portrays them unflatteringly or as something they are not. For example, no invasion of privacy claim exists for publishing a picture of someone in messy clothing next to a caption that suggests drug addiction. One might try suing that person for defamation instead.

The law regarding surveillance is complex and changes constantly. If you suspect your spouse is cheating, consider talking to a family lawyer before surveilling them or before you engage an investigator. At Goranson Bain Ausley, we understand surveillance law, and we know how to protect our clients so they can achieve the best possible outcome and avoid any trouble in the future, including hefty fines or even jail time.

If My Wife or My Husband Is Cheating, What Should I Do Legally?

If you suspect your spouse is cheating, your initial reaction might be to gather evidence on your own. However, the bottom line is that it’s essential to understand the legality of any potential actions you might take.

Here’s what you should do:

1. Consult With a Family Lawyer: Before taking any action, speak with a family law attorney who understands surveillance law. They can guide you on what is legally permissible and help you avoid any actions that could have negative legal consequences.
2. Avoid Illegal Surveillance: While it may be tempting to use GPS trackers or spy on your spouse’s phone, certain surveillance methods are illegal. To recap:

• Is it Legal to Put a Tracker on a Car? No, it is illegal to put a tracker on a car that your spouse exclusively owns or leases.
• Is it Illegal to Spy on Your Spouse’s Phone? Unauthorized access to your spouse’s phone, including intercepting and reading their messages or emails, is illegal.
• Is Recording Someone Illegal in Texas? Recording your spouse when you are a party to the conversation when both parties are within the borders of Texas is legal in Texas; however, recording a conversation when one party is not within the borders of Texas is not legal in all states. Therefore, if one party to a conversation is located in a mutual consent state, a secret recording may be illegal in that state.

3. Gather Evidence Legally: If you need evidence of infidelity, your lawyer can advise you on legal methods to obtain it. This may include:

• Hiring a licensed investigator who knows how to collect evidence legally.
• Using evidence that is legally accessible, such as financial records, which might show unusual expenditures that could indicate infidelity.

By following these guidelines and consulting with a knowledgeable family lawyer, you can navigate the challenging situation of a suspected affair while staying within the bounds of the law. At Goranson Bain Ausley, our family law attorneys are experienced in handling complex cases and can help you take the right steps to protect your interests and achieve a favorable outcome.

Learn More

Tom Greenwald is an accomplished trial attorney with more than three decades of experience practicing family law. He has been honored as the Best Lawyers Family Law “Lawyer of the Year” in Dallas/Fort Worth and has been recognized by D Magazine as one of the “Best Lawyers in Dallas: Family Law” six times, and named a “Top 100 Attorney in Texas” by Thomson Reuter twelve times. Tom offers specialized expertise in handling intricate divorce cases, including those involving complex compensation arrangements, property division, private business interests, separate property claims, business valuations, and child custody matters. His primary aim is to help clients achieve efficient and constructive resolutions, allowing them to save money and preserve amicable relationships moving forward.

For more information, reach out to Tom Greenwald at (214) 473-9696.

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