Once suspicion is aroused that your spouse may be committing adultery or having an illicit sexual relationship, what steps can you take legally to determine if your suspicions are correct.

Hire a Private Investigator: generally, hiring a private investigator who is experienced in divorce investigations is the best bet to confirm suspicions of adultery. The drawback is that private investigators can be expensive and there is no way to determine, in advance, how long the surveillance will take to discover evidence of the suspected infidelity. When hiring a private investigator, you should ensure that the investigator will use only legal means to discover whether adultery is occurring. Some actions which may be taken by a suspicious spouse or an uninformed private investigator may place a spouse in potential legal jeopardy (see below).

Use of GPS Tracking Device: In North Carolina there is no prohibition of GPS tracking devices. GPS devices can keep track of the location of a person or vehicle by tracking the signals emitted disclosing the device’s location. These devices are typically used by private investigators to conduct surveillance and track an automobile with less danger of disclosing the investigator’s presence or position. In effect, a GPS device allows the user to conduct what would otherwise have to be a visual surveillance and tracking more effectively. GPS trackers are also easily available for purchase. These devices are small and, when properly placed and attached to a vehicle are virtually undetectable. If used by a spouse however, the spouse or his or her agent will be required to monitor the GPS receiver and follow the spouse to his or her destination. In North Carolina, currently there are no cases which prohibit the use of these devices in civil, divorce cases.

• Monitoring of Email Communications: The monitoring of a spouse’s email or other electronic communications may violate state and/or federal law and possibly constitute an invasion of privacy. N.C. Gen. Stat. § 15A-287 (2006) prohibits the interception and disclosure of wire, oral, or electronic communications. The Federal Electronic Communications Privacy Act (ECPA) bars individuals from “intentionally intercept[ing], endeavor[ing] to intercept, or procur[ing] any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1)(a) (2005). The statute applies only to those communications that have been intercepted, not those that have been stored and define “intercept” as “the aural or other acquisition of the contents of any wire, oral, or electronic communication through the use of any electronic, mechanical, or other device.” Kinesis Adver., Inc. v. Hill, 652 S.E.2d 284, 296 (N.C. App. 2007). Generally, emails that have been opened and read are stored on the hard drive of a computer, even if “deleted.” If a computer is a one that is available for use by both spouses, an email account is not password protected and emails have been read and stored on the computer, they are generally considered legally accessible. Most courts examining this issue have determined that interception “under the ECPA must occur contemporaneously with transmission.” Where e-mails were stored on, and recovered from, the hard drive of the family computer the e-mails were not intercepted at the time of transmission. Evans v. Evans, 169 N.C. App. 358, 366 (N.C. App., 2005). In considering this option, you would be well advised to seek the advice of an experienced divorce attorney to ensure the legality of any steps you or a private investigator you may retain may take.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers  Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.

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