According to California’s no-fault divorce law, neither spouse in a marriage needs to show the court that the other did anything wrong in order to achieve a decree of divorce. Unlike decades past, when spouses had to prove that the other committed deep wrongs against the marriage like adultery or abandonment, today’s divorcing spouses only require one party to claim that they have irreconcilable differences and that the marriage is irretrievably broken.
Despite that, many spouses wish to prove wrongdoing on the part of their spouse during the divorce proceedings. But whether you believe your spouse is spying on you or you’re thinking about taking steps to spy on your ex, there are things every divorcing couple should understand about the legalities of spying on a spouse in California.
Why Spy on a Spouse?
With California’s no-fault divorce laws, it may seem pointless to spy on a spouse, but spying remains an all-too-common part of divorce in California. Though neither party needs to prove wrongs like adultery to get a divorce, there may be other reasons they feel spying is necessary including:
- To prove that the other spouse is hiding or purposely disposing of marital assets
- Proving bad conduct on the part of the other parent that could impact children, such as alcohol or drug abuse
- Showing that the children are in unsafe conditions with the other parent
- Showing that the other parent exposes the children to a dangerous person, such as someone with a criminal history
- Showing that the other parent plans something nefarious, such as to remove the children from the state or country after the divorce finalization
While some spouses may feel they have legitimate cause or justification for spying on their spouse during a divorce, California courts discourage spousal spying, and some forms of spying are against the law and can have the opposite impact on a divorce case than the spying spouse intended.
Are Some Types of Spousal Spying Allowable in a California Divorce?
California courts allow spouses to enter email and text exchanges between spouses as evidence in court. In some cases, recorded phone calls and voicemail messages are also allowed in court if they offer evidence that could impact child custody, especially matters of child safety. This type of recorded evidence may also be admissible if it reveals a spouse who is purposely hiding or disposing of assets prior to the courts division of marital assets. However, there are some caveats to this type of evidence. The law considers recording another person without their knowledge as spying and the evidence may be tossed out of court. California courts only allow this type of evidence under the following circumstances:
- If the spouse had no expectation of privacy at the time of the recording
- If the recorded statements were made in a public setting
- If the statements were evidence of violence against a child or child endangerment
Similarly, evidence obtained through tracking devices placed on a spouse’s vehicle may be inadmissible—and used against the person who installed the device as evidence of stalking—unless the vehicle was owned by the spouse who put the device in place, or jointly owned by both spouses. It’s legal to place a tracking device on a vehicle you own.
When Is Spying an Invasion of Privacy?
Some types of spousal spying can constitute stalking, and come with stiff penalties after a conviction. For instance, there are several brands of spyware designed for tracking a child or teen’s activity online. Some divorcing spouses use this to spy on their ex. It’s illegal in California to install spyware on an ex-spouse’s computer, phone, or other devices. This action is an invasion of privacy and is likely to do your case more harm than good.
If you have questions about spousal spying, your Los Angeles divorce attorney can help you to understand your rights and obligations under the law.