Does a Cheating Spouse Leave a Digital Trail?

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
  • Direct messages on social media

...any digital evidence of an affair on a smartphone is off limits for the purposes of a divorce case.

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.

Related: 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.

Contact Jason M. Barbara & Associates, P.C. today to schedule your FREE consultation!