It is hard to believe that unrequited love exists, while the scent of chocolate and roses still lingers in the air from Valentine’s Day, but on occasion, Cupid’s arrow does miss its mark and spouses may stray from their marital bonds. When this happens, what action can the injured spouse take to track down their cheating spouse without negative consequences falling back on them?
Whenever an injured spouse begins a campaign to monitor the actions of an alleged cheating spouse, the question of whether the actions being taken against the cheating spouse could be viewed as an invasion of privacy should always be considered. All of these actions rest on whether the information obtained on the cheating spouse breaches his or her reasonable expectation of privacy. If the actions are viewed as an invasion of privacy, then the injured spouse could be subject not only to a marital tort of invasion of privacy, but criminal charges and harassment charges as well.
In a recent case, a wife placed a global positioning system, or “GPS,” in the glove box of a jointly-owned vehicle that the husband regularly drove, in order to find proof of his infidelities. She did, and upon learning of the installation of the GPS, the husband filed a suit against the wife claiming a violation of his privacy rights. The trial court disagreed, stating the husband had no expectation of privacy in any of the information gained through the installation of the GPS, as it was installed in a vehicle which his wife jointly owned with him, and therefore, no reasonable expectation of privacy existed.
During the fault ground divorce action, the wife used the information she received from the installation of the GPS against the husband. The husband again filed suit against the wife for the marital tort of invasion of privacy, and added her personal investigator as an additional defendant. The claim against the wife’s personal investigator was dropped, and the claim against the wife was denied. The trial court again reminded the husband that he could not have a reasonable expectation of privacy in any information uncovered by the GPS, as it was obtained while he drove on public roads, where one does not experience an expectation of privacy.
The husband appealed the trial court’s decision. Unfortunately for him, the Appellate Court also felt that he had no reasonable expectation of privacy, stating:
Everything described in this report occurred on public roadways and in plain view of the public. There is nothing in the report that could support an inference that any surveillance of plaintiff [Husband] extended into private or secluded locations that were out of the public view and in which plaintiff [Husband] had a legitimate expectation of privacy.
The arsenal of gadgets that can be used against cheating spouses are not limited to GPS devices. Routinely, many injured spouses install tracking devices on computers, install cameras in the marital home and bug cell phones, all to prove the infidelities of the cheating spouse. In all of these scenarios, the expectation of privacy rests on the ownership of the items being monitored. For, in the majority of cases, judges are reluctant to find an invasion of privacy has occurred when the computer, cell phone or house is jointly owned and shared by the parties. However, if the computer or cell phone is owned by the cheating spouse’s employer, there is a reasonable expectation of privacy in those objects and the information they contain. Additionally, if the wife in this case had installed the GPS on the husband’s paramour’s vehicle, the result may have been quite different. So, before deciding “inquiring minds want to know” what an alleged cheating spouse is up to, remember to ask yourself whether the cheating spouse has a reasonable expectation to his or her telephone conversation, email log, text messages, driving routes, and/or home activities. If the answer is no, you may proceed, but with extreme caution, or you may find yourself on the other end of a harassment suit!
Cara A. Boyanowski concentrates her practice in the field of domestic law and wills and estates. As a domestic law practitioner, she represents clients in simple and complex divorce, support, custody, alimony, step-parent adoptions, name change and same-sex divorce and custody matters. She works out of Obermayer’s Harrisburg, PA office and can be reached at 717-234-5315 or at Cara.Boyanowski@obermayer.com.