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Spy vs. Spy: the increasingly short supply of privacy in divorce

Tennessee residents take note: some of what might be fair in love and war isn't fair in a divorce. In fact, it may be illegal and could even land you in a jail. We're specifically referring to the increasing use of evidence from both smartphones and social media sites such as Facebook in divorce proceedings nationwide -- and to a similar increase in use of hidden cameras, microphones, GPS trackers and other types of "spygear" as well.

So ... where are the lines drawn? Is it ever okay to use these types of technologies to acquire evidence for purposes of a divorce? Is it never okay? Unfortunately, this is an evolving area of the law that remains unsettled.

Two years ago, for example, a Minnesota jury convicted one man of stalking his wife because he had placed an electronic tracking device on her car. That verdict was later overturned by an Appeals court judge who said that because the man and his wife owned the car jointly, his ownership interest in the vehicle gave him the right to track where the car was at any given time.

In another case, this one from Nebraska, a court found one woman guilty of violating the Federal Wiretap Act for placing a spying device inside of a stuffed teddy bear. (FYI: The Federal Wiretap Act prohibits the intentional use, interception, or disclosure of oral, electronic or wire communication that isn't permitted by some other law.) Other courts, however, have found that federal wiretap prohibitions do not apply to cases involving spouses.

The bottom line: if you suspect your spouse of cheating or of using spyware to violate your privacy rights, talk to a divorce lawyer about your options before taking matters into your own hands.

Source: The Wall Street Journal, "A Spy-Gear Arms Race Transforms Modern Divorce," Steve Eder, Jennifer Valentino-Devries, Oct. 5, 2012.

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