Even when I tell my clients that Michigan is a no fault divorce state, they often want validation of their suspicions about their spouse’s fault behavior. It can be tempting to use some of the many electronic tools that are available. Before you do, check with your attorney to determine if you might be violating the law and whether what you find will be admissible in your case. Also consider that your behavior of conducting surveillance on your spouse may be held against you in the divorce.
Surveillance can be a violation of Michigan statutes and/or Federal law. Both have criminal penalties. While it is unlikely that your spouse will want to have you prosecuted for surveillance violations, it constitutes a breach of trust and can make your case much more difficult. The Oakland County prosecutor did recently prosecute a man who tracked his wife’s emails, so prosecution is not out of the realm of possibility.
Common forms of surveillance include:
Recording face to face conversations. As long as one of the parties participates in the conversation being recorded, this is not a violation of either federal or state law. While technically legal, the purpose of the recording is generally to obtain incriminating statements to be presented in court. In order to get the other party to make the statements while the recording device is on, the spouse who is recording frequently goads the other spouse. These exchanges often sound to the objective listener like one person provoking the other into anger and into making insulting statements against the other in defense of the provocation. In short, neither party sounds good to the judge. Presenting recordings happens fairly often in court. I had one judge opine that in his opinion, anyone engaging in such recordings is crazy. While other judges do not go to such lengths in condemning the recording party, they are very skeptical in giving the tapes much weight. Generally, the tapes hurt the case of the recording party. Discuss with your attorney better ways of making your case.
Recording telephone conversations. As long as the conversations are between the person who is recording and another person, these can be admitted in court. The same caution as described above applies to such recordings. However, if you record conversations between two other individuals, the recording is a violation of law, except in very limited circumstances. Therefore, be cautious regarding what recording equipment you are using. If it can be activated in your absence, the chance that you are violating the law increases.
Reading or intercepting email communications. If your spouse and you share a computer and can access each other’s email accounts, or share the same email account, then reading each other’s emails is not a violation of the law. However, if you have separate computers or each of you protects your email accounts using passwords that you do not share with the other, and you hack into your spouse’s account, it can be a violation of the law. If you install a device or software on your spouse’s computer that copies you with email communication between your spouse and a third party, it is a violation of the law.
There are many forms of surveillance. Many of the cases are decided on the basis of whether the person being watched had a legitimate expectation of privacy in these communications. For example, your spouse has a decided expectation of privacy in the communications between herself and her attorney.
Whether or not your surveillance is a violation of the law, consider the long term ramifications of your spouse finding out that you conducted surveillance on him/her. This can represent a significant breach of trust and invasion of privacy. At the very least they will be extremely angry. This anger will make the reaching settlement more difficult. If you wish to settle your case without a judge making the decisions for your family, negotiations will be considerably more difficult.
Before you spend time and money investing in surveillance equipment or hacking into your spouse’s computer, check with your attorney about the limitations the law places on such practices and whether what you are likely to find will truly help your case.