In criminal justice research, there’s a common thread – it’s
a common belief that criminals always leave behind evidence. Cheating
spouses, especially in this technological age are not much different.
Today, adulterous spouses almost always leave a digital trail.
Like Hansel and Gretel’s breadcrumbs, a cheating spouse will often
leave behind text messages, racy images, emails, and social media direct
messages that can lead a suspicious husband or wife to a treasure trove
of digital evidence.
The cheating spouse doesn’t mean to be careless, but they’ll
spend so much time on their smartphones, laptops, tablets, and computers
chatting up their paramours, it can be hard to cover their tracks. Not
only that, but overly-confident cheaters can get...sloppy.
Since it’s common for cheaters to leave a digital footprint, they’re
frequently caught. Often, a suspicious spouse will go to great lengths
to access their spouse’s smartphone, looking for “evidence”
of an affair. Other times, an innocent spouse will be borrowing their
cheating spouse’s phone and they’ll see a notification about
a racy message and they’ll be in utter shock. That’s when
they’ll launch a full-blown investigation.
Can Suspicious Spouses Legally Snoop?
Usually, the first thing a suspicious spouse will do is comb through their
spouse’s cellphone. Sometimes this is hard when their husband or
wife locks them out of their cellphone with a secret passcode or their
fingerprint. When the innocent spouse finally cracks the code on the phone,
they’ll try to read their spouse’s texts, emails, and direct
messages on social media, but is this practice legal?
Spouses may share marital assets under New York’s
marital property laws, but personal data on digital devices does not fall into the category
of “marital property.” In fact, there are strict federal privacy
laws in place that protect people’s personal data on their cellphones.
What does this mean?
It means that unless a cheating spouse gives their express permission to
their spouse to search through their private emails, phone calls, text
messages, photos, and direct messages on social media, any digital evidence
of an affair on a smartphone is off limits for the purposes of a
The only digital evidence that is admissible in divorce court is public
posts placed on a newsfeed, such as Facebook, Instagram, or Twitter. Direct
messages, private texts and racy photos sent via a smartphone, remain private.
Does Adultery Affect Alimony in New York?
If you found digital evidence of your spouse’s affair, our advice
is to become familiar with your spouse’s rights and protections
under the applicable privacy laws. Otherwise, you could be wasting your
time and energy. You could even be putting yourself at risk for criminal
charges if your spouse is put off by your investigative skills.