Divorce Surveillance Risks: Think Before You Spy

In the field of family law, emotions often cause rash decision-making. Spouses suspect their partner of cheating and feel the need to investigate. The Texas Family Code provides injured clients with courses of action against their cheating spouse. Though adultery does not carry the same legal “sting” it once did, the Texas Family Code considers adultery as grounds for divorce and justification for a disproportionate share of the community estate.

The wisest path to revenge against their adulterous spouse is obtaining a disproportionate share of the community estate or successfully arguing a waste claim based on their spouse’s showering of gifts and trips for their mistress or mister. However, this article is to warn against clients taking matters into their own hands and stumbling into illegal actions that could jeopardize their divorce, property division, attorney-client relationship, and freedom from criminal prosecution.

Some clients lose sleep wondering why their partner’s work schedule or life routine has suddenly changed. Could there be an innocent explanation or something more nefarious? A crossroads emerges: to spy or not to spy? Spouses on the receiving end of adultery often clamor for all information on their spouse and the unknown mister or mistress. Spouses may be left in the dark about where their cheating spouse goes, who they are with, and, for a successful waste claim, what type of gifts and expenditures their cheating spouse makes for the benefit of this unknown paramour.

It is natural to want as much information as possible on the spouse’s activities. However, before making that decision, significant considerations should be made to avoid criminal or civil liability for you and anyone involved in unauthorized tracking. These considerations should be discussed with your attorney before any actions are taken.

What Is Spying?

For our purposes, mentions of “spying” addressed here involve the use of a tracking device without the consent of the owner or lessee of a motor vehicle. Under Section 16.06(b) of the Texas Penal Code, a person may be found guilty of a Class A misdemeanor if they knowingly install an “electronic or mechanical tracking device” on a motor vehicle owned or leased by another person.

Three definitions are essential to keep in mind. First, an “electronic or mechanical tracking device” means a device capable of sharing, by electronic means or otherwise, a signal a person uses to “identify, monitor, or record the location of another person or object.”

Second, for purposes of the tracking device statute, “motor vehicle” carries a broad definition ranging from any motor-driven or propelled vehicle registered by the State of Texas to various trailers, off-road vehicles, and motorcycles not requiring registration.

Lastly, the Texas Penal Code defines “owner” as a person with the title to the motor vehicle, greater possession of the motor vehicle, or holds a negotiable instrument, such as the named person on a lease or rental agreement for a motor vehicle.

How does Section 16.06(b) of the Texas Penal Code play out in divorce cases?

Tracking devices applicable to this section come in all shapes and sizes. The first question is whether the object being installed in or on the motor vehicle can track the vehicle’s location.

The most recognizable device, and one receiving recent press, is an Apple AirTag. Approximately 1.25 inches in width and length, this small coin-shaped object may be placed inside the interior of a car, dropped in a truck bed, or connected to the undercarriage of any type of motor vehicle by magnetic or physical means. Other devices of greater size, cost, and sophistication that track the location of a motor vehicle would also fall under this definition.

Next, due to the broad definition of “motor vehicle” applied to the tracking device statute, almost any type of vehicle falls under the code’s description. Examples of motor vehicles likely falling under the code include:

• Coupes
• Sedans
• SUVs
• Minivans
• Pickup Trucks
• Limousines
• Campers
• Trailers
• RVs for Camping Trips
• Private Planes
• Speed Boats
• Yachts
• Motorcycles
• Dirt Bikes
• ATVs
• Golf Carts

Almost any type of vehicle may be considered a “motor vehicle” for purposes of the tracking device statute.

What Other Considerations Should I Make When Considering To Whether Or Not Track A Motor Vehicle?

The most significant consideration before tracking a motor vehicle using a tracking device is who owns or leases the vehicle. As Texas is a community property state, clients may confuse the fact that a car, truck, or motorcycle was purchased during the marriage and is community property with the idea that they are the “owner” of the motor vehicle. However, Texas appellate courts suggest that “ownership” under the Texas Penal Code does not incorporate the Texas Family Code’s understanding of community property as ownership. Instead, ownership is specially defined by the Texas Penal Code and is derived from the name on the certificate of title or the named lessee or renter on a lease or rental agreement.

Before installing any tracking device on a motor vehicle, a client should determine the name of the owner of the motor vehicle. Is the vehicle owned by a person outside the marriage or a company? No tracking is allowed without the person’s consent outside the marriage or company. Just the opposing spouse’s name on the vehicle’s title documents? Also not permitted without the opposite spouse’s permission. The party installing the tracking device must be listed as the owner or lessee of the vehicle without otherwise obtaining consent.

It is unclear what the Texas Legislature considered when it included the person with “a greater right to possession of the property than the actor” when defining ownership. However, for safety from criminal liability and a less contentious divorce suit, clients are discouraged from becoming the test case for when one’s right to possess property is more significant than another’s. Names listed on the certificate of title are the most straightforward form of ownership. Instead, clients should be encouraged to act cautiously and refrain from installing tracking devices without first speaking to their attorneys.

What Are The Consequences Of Spying?

If a spouse chooses to track their partner, extreme caution must be taken to avoid criminal liability or irreparable harm to their family law matter. The Texas Supreme Court recently decided a case involving a similar incident involving sharing electronic communications obtained without consent. This decision involved a modification case and centered on an attorney who received text messages, emails, and other electronic communication from her parent-client, who took electronic communications from an iPad belonging to the opposing parent-client by signing into it without the owner’s permission.

Although the attorney successfully protected herself from civil liability, the Texas Supreme Court stated that the attorney received no protection from potential sanctions, professional discipline, or criminal penalties. The gathering of information without consent and subsequent sharing of that information and other fruits of the wiretap placed the client’s case in jeopardy and the client’s attorney under the scope of criminal and ethical scrutiny. Involving your attorney, intentionally or unintentionally, could destroy the attorney-client relationship, frustrate your family law case, and result in potential criminal or civil liability. A similar situation could occur if a tracking device is installed on a spouse’s or another person’s vehicle without consent.

Emotions flare in every divorce. Naturally, the division of two loved ones breeds distrust and speculation. While confirming adultery may provide closure and a definitive reason for divorce, the penalties of tracking a spouse, paramour, or other people may outweigh any positives to be gained. Before ruining future independence from a former spouse and autonomy as a free citizen, contact a divorce attorney and think before you spy.

The Guide to Good Divorce℠ is your divorce resource

The Guide to Good Divorce℠ is designed to empower women to successfully navigate through divorce toward a fuller, healthier, and happier life. It was founded by Trey Yates, Board Certified Family Law Attorney by the Texas Board of Legal Specialization who has been practicing in the area of divorce and related family law matters since 1986. The Guide to Good Divorce℠ is a divorce resource for Texas women that provides guidance from uniquely qualified experts on divorce law in Texas, divorce financial education and planning, enhancing life skills, and physical and spiritual wellness. It is designed to empower women to successfully navigate through divorce toward a fuller, healthier and happier life.

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