In some states, including New York and New Jersey, spouses can seek a divorce based on “fault grounds,” such as adultery and abuse. Many courts will consider evidence of either spouse’s fault or marital misconduct when deciding whether to award alimony, how to divide property, and even when making custody and visitation decisions. As a result, many divorcing spouses are focused on gathering evidence of misconduct, primarily of adultery.
Before you embark on an investigative journey to confirm suspicions that your spouse is cheating, you should speak with an experienced family law attorney in your area to find out if courts in your state consider adultery when making divorce-related decisions. If they don’t, there’s really no reason to try and prove that your spouse is cheating, unless you feel like you must know the truth in order to move on. And even if adultery is a relevant factor in your state, you should consider the potential emotional and financial consequences of trying to prove your spouse’s misconduct - for both you and your children. This article discusses one of the most common methods of gathering evidence of adultery - a tracking device.
Maybe you are suspicious that your spouse is cheating, drinking and driving, or possibly even acting against the best interests of your children, so you ask yourself what you can do. One possibility is to hire a private investigator to track your spouse. You (or your investigatory) may be able to install a special Global Positioning System (“GPS”) car tracking device which will trace where the car goes whenever it’s turned on. These trackers must be installed in a target vehicle, so they can’t be used in more than one car. They also run on the vehicle's power, which ensures that whenever the targeted car begins moving, it will be able tracked in real time. These trackers are frequently used by large corporations for tracking company cars, parents who want to keep an eye on teen drivers, and spouses or private investigators, who are trying to follow a cheating spouse.
The answer depends on the laws of your state. The ownership of the car is one of the most common factors courts will consider in determining whether the use of a tracking device is legal. In most states, if you own the car jointly with your spouse or the car is your sole property, it’s probably legal to place a tracking device in the car. However, if you install a GPS tracking system in a car that isn’t yours, you may expose yourself to a lawsuit for invasion of privacy. In addition, any evidence you gather from the device will probably be inadmissible in court.
In 2011, a New Jersey appeals court approved the use of GPS tracking devices to spy on cheating spouses. In this case, a New Jersey wife installed a GPS tracking system in the SUV she shared with her husband so that the private investigator she hired could track her husband’s whereabouts. Through the use of the GPS device, the investigator was able to track the husband to his lover’s home. The ex-husband then sued the private investigator for violating his privacy.
The court found that the installation and use of the GPS tracking device in the shared vehicle was not an invasion of the husband’s right to privacy, because the GPS unit only tracked his movements in public areas, where he had no expectation of privacy.
This is rapidly changing area of the law. If you have questions about using a GPS tracking device or other technology to spy on your spouse, you should speak with an experienced family law attorney.
For the full text of the New Jersey decision on the use of GPS to spy on your spouse, see Villanova v. Innovative Investigations, Inc., 420 N.J.Super. 353 (App. Div. 2011).
For more information on this topic, see Think Twice Before Spying on Your Spouse in New Jersey.