by Attorney Eric D. PuryearThose involved in a divorce case are sometimes tempted to use spyware or other snooping techniques to spy upon their spouse. Such spying is not favored by the courts in Illinois or Iowa, and can even result in criminal charges.
The temptation to spy upon one’s spouse before or during a divorce case is one that often stems from a desire to show marital fault (e.g. adultery) or a desire to learn information that would be useful as to custody and/or the financial and property resolution in the divorce. There have been cases where spouses have used spyware – software installed on their spouse’s computer or cell phone – to monitor their spouse’s calls, texts, web browsing, or other activities to try and learn such information. Such tactics are both unnecessary and unwise, for the reasons discussed below.
When it comes to showing marital fault (also called “grounds for divorce”) there is no need to spy upon one’s spouse in order to show such fault. Some states such as Iowa are no fault states, meaning that a person who wishes to get a divorce in Iowa does not need to show proof of adultery or other misconduct on the part of their spouse. Even in states such as Illinois, which still require grounds, really any reason will do such that obtaining a divorce in Illinois is no more difficult than in a no-fault state. Indeed, as an attorney who has handled many divorce cases in both Illinois and Iowa, I have never seen a case where either party could prevent the other from obtaining a divorce. It is also worth noting that the courts in Iowa and Illinois cannot and will not use marital fault as a basis to reward or punish a spouse in terms of child custody, property, or finances, meaning that proving a spouse’s infidelity or other marital fault is a lot less relevant than many people might think.
To be sure, there are bad things that a spouse can do which will affect the outcome of issues such as child custody and the financial aspects of a divorce. The existence of domestic violence will affect the court’s custody determinations in both Iowa and Illinois, as will false domestic violence accusations. A spouse’s improper spending during and before the divorce case can affect the court’s decisions as to spousal support, ownership of property, allocation of debt, etc., as are attempts by a spouse to hide assets. As such, obtaining evidence to show such situations is important – and can be done through proper means. Facebook messages and text messages are often relevant evidence, and can be obtained through the Discovery process in a divorce case. The use of subpoenas and other tools such as depositions allow attorneys to expose an untruthful spouse’s statements and actions, so that the necessary evidence can be obtained and used in court. Spyware, on the other hand, tends to lead to inadmissible evidence (which the court will not allow to be used anyway).
Criminal charges can be filed against a spouse who unlawfully uses spyware in Illinois or Iowa. The crimes of computer spyware and malware in Iowa or computer tampering in Illinois can result in a felony conviction and the possibility of a prison sentence. Any evidence obtained in an unlawful manner is also likely to be excluded by the court, making such efforts ineffective, and possibly harmful to a person’s case.
Properly investigating the relevant issues in a divorce case is of great importance, as the outcome of the case will be decided based upon the evidence that is gathered and produced. However, there is a right way and a wrong way to gather that information, and spyware tends to be firmly in the “wrong way” camp. Those with a divorce case should instead work with their attorney to properly prepare their evidence and their case.