Suspicious Minds: The Legal and Non-Legal Costs of Surveillance in Domestic Cases (Part 3)

By Jennifer M. Paine

Attorney, Cordell & Cordell

Note: This is part three of a three-part series on surveillance in domestic cases. Click here to read part 1 and click here to read part 2.

divorce evidence

The Costs: “We can’t go on together with suspicious minds. . ..”

Keep in mind, these hypothetical surveillance situations only apply federal law. Your state laws may afford greater protections – i.e., prohibit more conduct – or mirror federal law. In particular, not all states apply the “consent exception” to state wiretapping laws like the Federal Wiretapping Act.

That means, even though you are a participant to a conversation and would not violate the FWA if you secretly recorded the conversation, you may violate your state’s laws. Your best move is to err on the side of caution – forgo recording, wiretapping, tracing, monitoring, tracking, etc., altogether and always consult a lawyer in your state.

The costs could be great.

Legally, they include criminal charges and civil liability. Not only could you run afoul of the FWA and the SCA, you could violate state counterparts. You could also commit torts (wrongs against persons) for invasion of privacy, infliction of emotional distress, stalking, defamation, and a host of other wrongs.

Morally, you become “the sneaky one” in your family, the tattle-tail everyone else avoids. Every family has the weirdo-uncle or the loner to avoid at reunions or the Chatty Kathy or the Blabbermouth Bill. He or she is the de facto outsider no one trusts.

Why jeopardize your status with your loved ones merely for the sake of obtaining information about your soon-to-be-ex neither your attorney nor the judge will likely want to hear/use anyhow?

Strategically, you lose considerable credibility in your case if you stoop so low as to snoop. While compromising photographs posted on Facebook, revealing instant messages about your children, e-mails confirming your spouse’s secret stash of money, etc., do have their place in court, the everyday chatter with a new lover, the occasional trip to the mall, the mundane e-mail that you think has a secret message, and the other things clients typically bring to their lawyers, do not.

They may shed light on the breakdown in your marriage. They may prove that your spouse really is cheating on you.

But unless they are relevant to child custody or (in some states) spousal support and property division, they are unhelpful. You will only annoy the judge, waste your limited court time (and your money) and look like the crazy spouse with the suspicious mind – or, worse yet, the unfriendly, overbearing, untrustworthy, sneaky spouse who most certainly will not raise friendly, loving, trusting children who respect their mother.

In other words, you jeopardize your chance of obtaining a favorable case outcome.

If, after considering the costs and the benefits, you do intend to snoop, be sure to discuss your plans thoroughly with your lawyer or, if you do not have one, a lawyer in your state.

Not all snooping is bad, and some could be profitable in court. But the costs of going-it-alone without appropriate legal advice could be greater.

Note: This is part three of a three-part series on surveillance in domestic cases. Click here to read part 1 and click here to read part 2.


Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

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