By Donald Schumacher, Esq. 

Every once in awhile, parents get “curious” (but really worried and concerned) about what their children are doing on their devices. As a result, they install spyware and feel that it’s totally okay to ensure their safety.

However, installing spyware onto a spouse’s smartphone or computer without consent is not okay. In fact, doing so may be considered a predicate act of stalking. And, if the spouse proves that the spying causes them fear of harm, it could lead toward the issuance of a restraining order.

Before you brush this off as a slippery-slope argument, think about how many of us do not have the special set of skills necessary for discovering the spyware in our technology. If you are concerned that spyware has been installed, you should bring the device to a qualified technician to investigate. 

For example, pay attention if your spouse knows you are going to movies at 7 pm on a Friday night with friends and will be home late for dinner. In essence, if your spouse seemingly knows your plans before even you know them, unexpectedly showing up at events that you were attending, asking about specific events you attended the prior evening, these would lead any reasonable person to believe that they are being followed with the assistance of spyware. In such an event, private investigators can be utilized to scan electronic devices – but this can be expensive, as a forensic digital investigation can be quite complex. A more cost-effective remedy may be to just replace the device on which spyware has been installed but, if you do so, do not discard the device. You would be discarding the only evidence of spyware should the issue ever arise during the divorce proceedings.    

As a legal note to keep in mind, evidence obtained illegally is not admissible in court at the time of trial. That does not necessarily mean that one spouse may still consider installing spyware onto a device of their significant other. If you are concerned that your spouse has installed spyware on your electronic devices, you can report this to the local police. The police may not be able to assist you in proving that spyware has been installed or by whom, but calling 9-1-1 is not for the sake of pressing buttons on your phone. The police department will document the concern with the preparation of an incident report as to what were your concerns and the bases for the concerns. 

Although, in New Jersey, fault will generally never impact the ultimate outcome of a divorce action, if one litigant pursues litigation in a bad faith manner, bad faith can be a basis for an award of counsel fees. It would be awfully surprising to find a judge presiding over a divorce matter to not see installing spyware onto a spouse’s technology as being in bad faith. However, you would still need to prove to the Court that the spyware has been installed and by whom to demonstrate bad faith if you are trying to pursue a claim for legal fees.

Be aware, pay attention to the signs, and inform your lawyer of any suspicions.