My Spouse the Spy?

November 1, 2012

377795_binoculars.jpgAs we have previously blogged, technology is playing an important role in San Diego divorces. Often, spouses use social media sites such as Facebook to gather information about their spouse to be used in the dissolution process. However, some spouses are taking the use of technology to a whole new level. Danny Lee Hormann did not simply peruse his wife's Facebook when he suspected her of cheating. Instead he installed a gamut of spy equipment in the family home, on the family computer, on his wife's cell phone, and in his wife's car.

Michele Mathias, Hormann's wife, became so worried that her husband was spying on her that she and their children searched the family home for recording devices and held whispered conversations on the lawn. Mathis argued that it was not only her family's privacy that was invaded, but the privacy of every person who sent her a text message or used her computer was compromised as well. The police pursued criminal charges against Hormann for stalking and he was sentenced to thirty days in jail. According to Hormann, when others hear his story they reply that they would have done the same thing.

This type of spying and information gathering results in the collection of more private information in a short period of time than the discovery process may ever be able to gather. However, many lawyers are questioning the legality of this behavior and what information, if any, can actually be used as evidence in a dissolution case. Under the U.S. Constitution, we all have a "reasonable expectation of privacy." This expectation of privacy is reduced in certain instances such as when a person is in public. Spying spouses have begun to argue that there is no reasonable expectation of privacy in a marriage.

Various states have begun to hear cases on this subject. In Nebraska the court determined that embedding a listening device in a teddy bear violated the Federal Wiretap Act. In Iowa, the court found that a spouse's privacy is violated if his or her spouse installs a camera in the marital bedroom. However at least five of the thirteen federal courts have determined that the Federal Wiretap Act does not prohibit marital surveillance. Only two have ruled to the contrary.

Although it is still unknown whether evidence obtained this way would be admissible in a dissolution proceeding, such spying can lead to criminal charges if it is done to harass or intimidate. In Del Mar and throughout San Diego County, depending on the facts of the case, this type of spying may lead to allegations of domestic violence and a domestic violence restraining order.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.