Can My Spouse Legally Track My Phone During a Divorce?

The tension of a divorce can sometimes lead people to make impulsive decisions. In an effort to gather evidence or keep tabs on a partner, one spouse might consider using technology to track the other’s location. However, in Garden City and throughout New York, digital surveillance is a legal minefield that can lead to criminal charges and severe setbacks in your divorce case.

If you suspect your phone is being monitored, or if you are tempted to track your spouse, it is vital to understand where the law draws the line.

Is Digital Tracking Illegal in New York?

In short, tracking a spouse without their consent is generally illegal and can be prosecuted as a crime. Under Jackie’s Law, enacted in 2014, New York updated its stalking statutes to include the unauthorized use of GPS technology.

• Stalking in the Fourth Degree: Using a GPS device or software to track someone’s movements without permission is considered a form of stalking. This is a Class B misdemeanor that can result in jail time, fines, and a criminal record.
• Eavesdropping and Spyware: Installing “spyware” on a spouse’s phone to intercept texts, emails, or calls is a felony in New York.
• One-Party Consent: New York is a “one-party consent” state for audio recordings. This means you can record a conversation you are part of, but you cannot legally record a conversation between your spouse and a third party.

The Risks to Your Divorce Case

Beyond the risk of arrest, digital snooping often backfires in the courtroom. New York judges have little patience for parties who violate privacy rights.

• Inadmissible Evidence: Information gathered through illegal tracking or hacking is typically not allowed to be used as evidence in court.
• Financial Penalties: Courts have the power to adjust the equitable distribution of marital property if one spouse engaged in “unethical tactics,” such as electronic surveillance. In some extreme cases, a spouse who used spyware has been denied the right to seek certain marital assets or alimony.
• Custody Implications: A parent who constantly monitors the other can be viewed as unstable or controlling, which may negatively impact their quest for custody.

How to Protect Your Privacy

If you believe your spouse is tracking your phone or accessing your private accounts, you should take immediate steps to secure your digital life:

• Change Your Passwords: Update passwords for your email, social media, and bank accounts. Use unique, complex passwords that your spouse cannot guess.
• Check Shared Accounts: Remove your spouse’s access to any shared cloud storage (like iCloud or Google Drive) or family tracking apps like “Find My”.
• Inspect Your Devices: Look for unfamiliar apps on your phone or unusual battery drain, which can be signs of hidden spyware.
• Consult Legal Counsel: If you find a physical tracking device on your car or evidence of phone tampering, do not delete the evidence. Instead, contact your attorney to discuss filing for an Order of Protection.

How We Help You

At Aiello & DiFalco, we understand how overwhelming it feels to have your privacy invaded during a divorce. We will help you protect your rights and ensure that your digital security is addressed in your legal strategy.

We can assist you by:

• Identifying potential privacy violations in your specific situation.
• Working with forensic experts to uncover hidden spyware or tracking devices.
• Seeking court orders to stop unauthorized surveillance.
• Ensuring that any evidence presented against you was obtained legally.

Would you like us to review your current digital privacy settings or discuss how to address suspected tracking in your divorce proceedings?