Tracking Technology in Divorce Litigation

Technology affects just about every aspect of our lives today, including legal matters like divorce. It may be tempting for spouses who don’t fully trust their partners to use tracking technology to get information regarding their whereabouts and communications. Tracking devices are increasingly small, readily available, reasonably priced, and easy to use. They can also provide irrefutable evidence of wrongdoing. But should you use them?

Should You Use a GPS Tracker for a Cheating Spouse?

When you want answers you can trust, using a GPS device to track a cheating spouse may seem like your best option. There’s a reason many people type “GPS tracking device for cheating husband” or “cheating wife GPS tracker” into search engines. In Maryland, using these devices to gather evidence for your divorce could backfire on you.

Let’s talk about the potential consequences of using technology to spy on your spouse, including implications for your divorce case. Remember, the law often lags behind developments in the technology it is meant to regulate. So even if a new tracking technology isn’t illegal under current law, it could be illegal soon, as the law continues to evolve.

GPS Trackers on Vehicles

Using a global positioning system (GPS) on a spouse’s vehicle can, technically, help you find out if they are where they are supposed to be. However, Maryland is a “two-party” consent state, which means that one person cannot legally record or intercept another person’s private communications without their consent. GPS trackers that transmit real-time data are subject to Maryland’s Wiretap Act.

Using GPS to track a person who is unaware of it, or who has not consented to be tracked, may also violate laws against stalking, harassment, or invasion of privacy. Evidence obtained illegally through a GPS tracker will be inadmissible in court in your divorce matter. If the court finds that your use of tracking technology was improper, that finding could impact certain aspects of your case, such as equitable distribution of property and your credibility overall. There is also the possibility of criminal penalties depending upon the specific facts.

Using a GPS device to track a spouse is illegal if the vehicle upon which the device is placed is titled in the spouse’s sole name. You may have some legal right to place a GPS tracker on a vehicle that is jointly owned by you, or in your name alone. Even so, there is no guarantee that a court will admit evidence obtained from the device, especially if your spouse was not aware of its use.

Can private investigators put tracking devices on cars? Not if their client couldn’t. If it would be illegal for you to place a tracking device on your spouse’s car, it would be equally illegal for a private investigator to do so on your behalf.

AirTags

AirTags are small tracking devices, about the size of a coin, made by Apple. They use Bluetooth technology to connect to Apple devices nearby and relay the AirTag’s location to iCloud, which allows the owner of the device to track it. They can be hidden in a car, placed in a suitcase, or dropped in a pocket or bag.

Because AirTags don’t use the same type of technology as GPS devices, they may not be subject to Maryland’s wiretap laws. However, Maryland courts would likely still hesitate to admit evidence gained from an AirTag in a divorce case, especially if it was placed in or on a party’s property without their consent or knowledge. The person who placed the device could also be subject to criminal penalties for stalking or invasion of privacy, and face civil liability as well.

There might be some leeway to place an AirTag on property that is jointly owned, such as a laptop for family use or a vehicle owned by both you and your spouse. But Maryland courts will consider whether the use of the air tag device was both reasonable and lawful before admitting evidence obtained from it’s use.

Monitoring a Spouse’s Electronic Communication

Another way to gather information about a spouse’s potential misconduct is to monitor their computer, tablet, or phone—the devices on which they communicate with others. Installing keyloggers or other spyware without your spouse’s consent on their private device is illegal under Maryland’s Computer Crimes Act. Intercepting voicemails, phone calls, emails and text messages from your spouse’s devices without their permission is also a violation of wiretap laws, in most cases.

Sometimes communications automatically sync to a shared device. For instance, a text to one spouse’s iPhone might sync with a jointly-owned and used iPad, and the spouse using the iPad might see the text message pop up. If the first spouse knew that the devices synced and made no effort to keep their messages private, the messages could be admissible in court.

However, if the messages did not appear automatically or the spouse who saw them took some measures to bypass security, a court may consider the information illegally obtained.

Work with an Experienced Maryland Divorce Attorney

While there may be some limited circumstances in which you can use tracking technology to find out what your spouse is up to, there is also a significant danger that your efforts to track your spouse will have negative consequences for you. The better course of action is to confide your concerns to a divorce attorney. An experienced attorney will be familiar with the implications of tracking technology use in divorce; they can help you get answers without putting yourself, or your divorce case, at legal risk.

To schedule a confidential consultation with an experienced Maple Lawn divorce attorney, call us at (301) 658-7354 or contact us online.