Recording Conversations, Reading E-mails, and Tracking Devices


Divorce is a time of high emotion. That emotion is often, of course, sadness over an ending marriage. But many times I visit with divorce clients who are angry because they are certain their spouse is having an affair. They want to find proof of their suspicions, so they consider turning to the best ways they know how to get that evidence – phone conversations, e-mails, and their local movements. Here are a few things you should know (in Texas) when it comes to “snooping” on your spouse:

Can I Record My Spouse’s Telephone Conversations?

The legal answer is maybe, but my advice is…don’t do it (see below). While there are federal laws that address this issue, there is also a specific Texas law that also answers this question. Chapter 16 of the Texas Penal Code prohibits a person from recording a conversation unless the person recording it is a party to the conversation or received permission from one of the parties to the conversation. So, essentially, unless you are on the phone and a part of the conversation with your spouse, you cannot legally record it. But if you are a part of the conversation, you can record it without telling your spouse you are recording it. And your spouse can do the same – record the conversation without telling you. The technology of today’s cell phone makes that an easy thing to do.

Can I Read My Spouse’s E-mails?

Again, the legal answer is maybe, but my advice – again – is…don’t do it. Like the recording of conversations, there are federal laws on the books that pertain to accessing another person’s e-mails, but Texas law is likely to provide stiffer criminal penalties and subject the “snooper” to potential civil liability as well. In Texas, a person may not access his or her spouse’s computer without “effective consent.” Some might interpret this to mean that if they know their spouse’s password, then they have consent. However, the statute specifically reads that consent is not “effective” if it is used for a purpose other than that for which it was given. While some couples do have shared e-mail accounts, I would hazard a guess that most do not. In those instances, my advice would be to stay out of your spouse’s e-mail account because it’s unlikely that your spouse intended for you to read his or her e-mails about something they were trying to hide from you. In my opinion, the consent you think you have to your spouse’s e-mails needs to be very clear.

Can I Put a Tracking Device on My Spouse’s Car?

Can you guess my answer? Maybe…but don’t do it. Texas does have a specific statute that prohibits a person from installing a tracking device on a vehicle that belongs to or is leased by another person. So, if the car is leased or titled only in the name of your spouse, it’s an easy answer. It’s illegal for you to do it. If the car is leased or titled only in your name, and both of you regularly drive the car, you probably are not in violation of the law. But if your spouse is the one who regularly drives the car, he or she may have a reasonable claim that you are stalking in violation of the law. The same analysis could be applied to a vehicle that is leased or titled in both of your names.

To Do or Not to Do?

It is very much human nature to want to succeed. And rightly or wrongly (I would say wrongly), people have a tendency to feel like they have failed when they divorce. Because people don’t want to fail, they want to be able to pin the blame on their spouse for the end of the marriage. It is important to know that except for very limited circumstances which apply to very few people, judges are really not interested in whether you or your spouse had an affair. Proof of one is going to have little, if any, impact on the outcome of your divorce. This includes custody arrangements and property division. And I would be willing to bet that proving an affair that you are suspicious of is not going to make you feel any better, especially if you end up becoming a criminal to find out. So, be good to yourself and do all of the right things to help YOU move forward. You will be happier for it, and that’s what counts.

Rhonda Cleaves is a Credentialed Collaborative Divorce Attorney in Collin County, Texas, with clients in Plano, Dallas, Allen, Frisco, McKinney, Carrollton, Southlake, and Lewisville.

Rhonda Cleaves

Rhonda began practicing law in 1995. She left a successful civil trial practice in 2005 to concentrate on family law — specifically, helping families transition to postdivorce life. She now practices exclusively in this area.

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