Using GPS to track your spouse during divorce – or tracking them via their cell phone – is a relatively new thing. Beware however, digitally tracking your spouse is a legally dicy deed.
If you think your spouse is digitally sleuthing you, there are some things you can do.
Using GPS to track your spouse – forbidden, frowned upon, or a free-for-all?
This month marks the five year anniversary of the first Supreme Court Case to address protection of our privacy rights against digital age government intrusion. In that case, the government used GPS without a warrant to track a suspected drug dealer. The Supreme Court decided government use of GPS tracking is a “search,” that triggers Constitutional protections of our privacy.
However, when two private citizens are involved (like using GPS to track your spouse), and there’s no government action at issue, the rules are different. Sometimes those rules aren’t so clear.
To track or not to track?
In a Nebraska divorce case or other Nebraska family law case, (or in criminal court) the Judge is likely to view recording sound or images of people differently than only tracking whereabouts of a vehicle.
Not long ago, a Nebraska woman involved in a domestic relations case sewed a recording device into her four-year-old child’s teddy bear. As a result, the court ordered her to pay quite a bit of money in damages, plus attorney fees and costs, for violating her ex-husband’s privacy.
Clearly, if you’re considering using GPS to track your spouse, or tracking your spouse via their cell phone, you should consult with an attorney. Ideally, that attorney should have deep experience in both family and criminal law. Here at Hightower Reff, we practice in both areas of law – family law and criminal law. That means when a client’s question crosses practice area boundaries, we can give them a quick, knowledgeable answer.
Ownership is key
In general, in Nebraska, if you’re thinking of installing a GPS unit on a vehicle to track the vehicle’s movements, make sure your name is on the title. If you’re thinking of using an app for cell phone tracking, make sure it’s through a device on your account.
In Nebraska, you could also hire a private investigator to do spousal surveillance for you. Most PI’s in Nebraska use electronic surveillance after they’ve watched the subject enough to establish a pattern of behavior.
If there’s a protection order against you however, paying someone else to follow your ex for you isn’t likely to play well with a Judge (to say the least).
Foreseeable fails
Beware – using GPS to track your spouse during a divorce (or otherwise) could put you in hot water. Depending upon the situation between you and your spouse, and how you go about monitoring his or her movements, you could run afoul of harassment or stalking laws.
Additionally, if there’s a protection order in place against you, tracking of any sort is an automatic no-go.
Also, emotions are often intense during a divorce. If your spouse finds out what you’ve been up to, your digital detective work may make bad feelings between you and your soon to be ex-spouse even worse.
Tracking cost-benefit analysis
Another thing to consider if you’re thinking of using GPS to track your spouse, or tracking them via their cell phone, is whether the value of information you may get is likely to be worth the risk. If you’re considering using the information in court during your divorce or other family law case, talk to your attorney about whether it’s likely to be admissible.
Consider also that, even if the Judge lets in the evidence, you could be the one who comes out looking the worst. It may appear that you have control issues, are unreasonable – or you’re just a jerk.
All states aren’t the same
Keep in mind that Nebraska law is different from laws of some other states, so this information may not apply elsewhere. Also, whether tracking or surveillance of a certain nature is legal can change depending on what, if anything, is recorded.
It’s always best to consult with a trusted attorney licensed in your jurisdiction before you do something that may get you in hot water. This is especially true when it comes to something that could have criminal penalties – like GPS or cell phone tracking or surveillance.
Protecting your own digital privacy during divorce – what you can do
While you’re considering going modern-day Inspector Gadget, your spouse may have already beat you to the electronics store (or website, or app store.. or to your phone). But there are some things you can do to protect your privacy from digital disruption during your divorce.
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If you think you’ve been tracked (digitally or otherwise), tell your lawyer. She or he can ask written questions of opposing counsel to find out whether your spouse or anyone acting for them has used cell phone tracking or monitoring, GPS, or the services of an investigator.
If you find out your spouse or someone acting for them hired an investigator, your lawyer should subpoena the investigator and get every last bit of information they’ve dug up about you. If your spouse un-truthfully denies hiring an investigator, they can’t use any information from the investigator in court.
This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.
More information about Hightower Reff’s divorce practice is available here.
If you need help with a Nebraska divorce, contact Hightower Reff Law today and visit one of the attorneys at the Omaha office.
