A survey published by the American Academy of Matrimonial Lawyers (AAML) shows a significant increase in the use of evidence taken from smartphones and social networking websites in matrimonial litigation. Men and women have become more attached to their social media websites and smartphones, and matrimonial litigation has reflected this attachment with the increased use of this information being put under the microscope.
Not only has this information been exploited more often, but new spying gadgets and technology have made it easier for spouses to collect evidence prior to obtaining a divorce. The use of this type of spying and surveillance is generally invoked when there is a fear of infidelity or a concern of marital assets slowly disappearing into hidden accounts.
However, before you hire a private investigator, hide a recording device, or snoop through a smartphone or email, it is important to know that this type of spying may be illegal depending on your surveillance methods and the state in which you live.
Courts’ Take on Surveillance of a Spouse
Recently, the courts have started to analyze and evaluate current wiretapping and surveillance laws. Intrafamily surveillance has become the center of the debate as circuit courts have found themselves split on the issue. The first factor that courts analyze is what exactly a spouse’s expectation of privacy is in a marriage.
Expectation of Privacy: Government vs. Non-Government Spying
The lines are easily delineated when understanding the expectation of privacy that one has from government intrusion and from the outside world. The reasonable expectation of privacy found in 4th Amendment case law involving the government is a balancing test of both objective and subjective tests: first, whether a reasonable person in society would have an objective expectation of privacy in the situation; and second, whether a person at the center of the violation believed he or she had an expectation of privacy in the situation.
Illinois Passes “Intrusion upon Seclusion” Tort Claim
For non-government snoopers, Illinois provides a tort for intrusion upon seclusion if:
There has been prying or snooping without permission;
The intrusion is the type that a reasonable person would find objectionable or offensive;
The intrusion was on a matter that was private; and
The intrusion caused some sort of suffering or damage.
Difficulties of Expectation of Privacy between Spouses
With regards to a married couple, marriage is one type of relationship where the expectation of privacy between a couple is low as the couple shares many intimate spaces, especially in the home. However, courts have begun to apply that wiretapping, any type of video or recording device that is hidden without the spouse’s knowledge or permission, and/or the installation of any type of software on a spouse’s computer or telephone is illegal. A person who has done the above mentioned actions could be civilly and/or criminally liable.
An Experienced Family Law Attorneys Can Help
Evidence collection, especially when trying to divorce based on one of the identified grounds, is essential to divorce litigation. However, it is important that evidence collection be done legally and without breaking any wiretapping or surveillance laws. Contact an experienced DuPage County family law attorney at Mevorah & Giglio Law Offices today to schedule a confidential consultation about the needs of your case.
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