Technology has made it remarkably easy to find out where another person is. Your spouse's phone may share a location. Your cars may have connected apps. An AirTag or other GPS device can be hidden almost anywhere.
So if you're going through a divorce and you suspect your spouse is lying about where he or she is going, you may wonder: Can I track my spouse?
Be very careful. Secretly monitoring your spouse's location can create serious legal problems, and depending upon what you're doing and the circumstances, it may implicate New Jersey laws involving stalking, harassment, privacy, or electronic surveillance.
Is It Illegal to Track Your Spouse in New Jersey?
There isn't a simple rule that says every use of a GPS device or location-tracking technology is automatically illegal. The circumstances matter. But that doesn't mean secretly tracking your spouse is something you should do.
New Jersey's stalking law specifically recognizes following, monitoring, observing, and surveilling another person through a device or other means as conduct that can be part of stalking. Whether particular conduct actually constitutes stalking depends upon the complete circumstances and whether the legal requirements for stalking are satisfied.
That's very different from saying: "It's my spouse, so I'm allowed to track them." Don't make that assumption.
What About an AirTag or GPS Tracker?
Putting an AirTag, GPS tracker, or similar device in your spouse's car, purse, clothing, or belongings can raise serious legal concerns. The fact that the technology is inexpensive and readily available doesn't make every use of it lawful.
And during a divorce, the surrounding circumstances can make the situation even more serious. If there is already a history of threats, harassment, domestic violence, unwanted contact, or controlling behavior, secretly monitoring someone's movements may become part of a much larger legal problem.
If you're thinking about placing a tracking device on your spouse or something your spouse uses, talk to your attorney before you do it.
What About Location Sharing on a Phone?
This can be more complicated. Married couples frequently share locations voluntarily. You may use Apple's Find My feature, Google location sharing, a family account, a vehicle app, or another service that both spouses have used for years.
That's different from secretly installing software or gaining unauthorized access to an account or device for the purpose of monitoring your spouse. The important question isn't simply whether you can technically see the location.
You need to understand why you have access, whether that access is authorized, and what you're doing with the information. Don't assume that knowing a password or previously having access gives you unlimited permission to monitor your spouse during a divorce.
Don't Install Spyware
Location isn't the only concern. Software that secretly monitors messages, calls, emails, keystrokes, or other communications can raise additional legal issues beyond physical location tracking.
New Jersey has laws governing the interception of wire, electronic, and oral communications. Those laws are complicated, and the legality of particular conduct can depend upon exactly what information is being obtained and how it is being obtained. This isn't an area where I would recommend experimenting to see what you can get away with.
What If You Think Your Spouse Is Hiding Something?
This is where people sometimes get themselves into trouble. Maybe you think your spouse is having an affair. Maybe you believe marital money is disappearing. Maybe you think your spouse isn't being truthful about employment, travel, parenting, or another issue.
That doesn't necessarily mean secretly tracking your spouse is the right way to find out. Divorce attorneys have lawful methods for obtaining information.
Depending upon what we're trying to establish, those may include financial discovery, subpoenas, document requests, depositions, witness testimony, business records, and other evidence. The appropriate method depends upon what information actually matters to your divorce.
Do You Even Need This Evidence?
Before trying to investigate your spouse, ask a more basic question: What am I trying to prove? New Jersey divorce cases generally aren't about proving that your spouse is a bad person.
For example, discovering where your spouse went on Saturday night may feel enormously important personally while having very little effect on the financial or custody issues the court actually has to decide.
On the other hand, evidence involving hidden assets, misuse of marital funds, child safety, domestic violence, or another legally relevant issue may matter considerably. That's why I would rather have a client talk to me before conducting his or her own surveillance.
First determine whether the information matters. Then determine the lawful way to obtain it.
Could Tracking Become Part of a Stalking Case?
Potentially. Under New Jersey law, stalking involves more than simply using a tracking device.
The law addresses a purposeful or knowing course of conduct directed at a particular person that would cause a reasonable person to fear for his or her safety, fear for another person's safety, or suffer other emotional distress.
The statutory definition of a course of conduct specifically includes repeatedly following, monitoring, observing, or surveilling someone through an action, method, device, or other means. So electronic tracking can potentially become part of a stalking allegation depending upon the circumstances. That's another reason to take this issue seriously.
What If You Discover That You're Being Tracked?
Don't immediately destroy a device if you discover one. Depending upon the circumstances, it may be important evidence. Consider photographing where you found it and speaking with your attorney about what you discovered and what you should do next.
If you believe you're being stalked, threatened, or are in immediate danger, this is no longer simply a divorce-strategy question. Contact law enforcement or seek appropriate legal protection.
Don't Create a New Problem for Yourself
Divorce makes people suspicious. Sometimes that suspicion is justified. But the fact that you're getting divorced doesn't give you unlimited authority to monitor your spouse's location, devices, communications, or private accounts.
Before using an AirTag, GPS tracker, tracking app, spyware, or another surveillance method, talk to your attorney. You may discover that the information you're trying to obtain doesn't matter nearly as much as you thought. And if it does matter, there may be a much better way to obtain it without creating a new legal problem for yourself.
If you're preparing for divorce and want to understand what you should and shouldn't be doing before making your next move, my free Divorce Smarter Course will walk you through the major issues involved in a New Jersey divorce.
Until next time,
Steve