Surveillance of Your Spouse in a Texas Divorce

February 6th, 2020

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Hidden photographer taking pictures out of a car window

Communications, audio, and video technologies are growing at ever-faster rates. Many people now carry devices in their pockets that enable them to record video and audio, and also to communicate by voice, text, email, and social media. In a Texas divorce case, audio recordings, videos, and photographs of your spouse can be useful, especially if you are trying to prove that they did something wrong, like hide assets or commit adultery. That said, proceed with great caution.

While it might be tempting to use some form of surveillance to gather evidence — or dig up dirt — about your spouse, it presents several major risks. At best, your efforts to collect evidence will not help your case, either because it is not relevant to the legal issues, or it was gathered in violation of the law and your spouse’s rights. You also risk serious legal trouble of your own under Texas laws dealing with recording a person without their knowledge or consent.

Reasonable Expectations of Privacy

Most of the laws we are discussing here are based on the legal principle that every person has a “reasonable expectation of privacy.” Certain areas of our lives are private unless there is a compelling reason for them not to be private. Police, for example, are not supposed to invade a person’s privacy by patting them down unless they have a specific reason to do so.

A person involved in a divorce is even more constrained by privacy rights. Texas law allows you to obtain evidence in certain ways, which balance your spouse’s privacy with your right to pursue your claims in court.

Audio and Video Recordings and Photographs

Texas has multiple laws on recording audio or video of a person without their knowledge, or secretly taking photographs of them.

“One-Party Consent” for Audio Recordings

Consumer audio recording technology has been around longer than video recording, so the legal system has had more time to create laws dealing with it. Texas is known as a “one-party consent” state, meaning that it is legal to record a conversation as long as at least one participant has consented to the recording:

You and your spouse: You can record yourself talking to your spouse without asking their permission first, since you are the one making the recording.
Your spouse and a third party: To record a conversation between your spouse and someone else, one of them must give consent.
Your spouse and your minor child: Although one could argue that you can consent to the recording on behalf of your child, this situation is tricky, and should be avoided.

In addition to criminal penalties for violating one-party consent, Texas also allows a person recorded without their permission to file a civil lawsuit. Damages may include $10,000 per incident, plus other damages and attorney’s fees.

Some states have “two-party consent” laws, meaning that all parties to a conversation must consent to recording. The more restrictive law applies when a conversation occurs over state lines, such as by telephone. If you are in Texas, and your spouse is in a two-party consent state like California, you cannot record a phone conversation without their permission.

Photos and Videos Taken in Public Places

People do not have a reasonable expectation of privacy, at least in a visual sense, when they are in a public place. Photographs or video of a person while they are out in public generally do not violate their privacy rights or Texas law.

A common example from popular culture involves a person, possibly a private investigator, taking pictures of someone while they sit in public. The photographs would not be unlawful. Recording their conversation, on the other hand, might be against the law.

Private Photos and Video

Photographs and video taken in a location where an ordinary person would expect privacy might violate criminal laws that only recently took effect in Texas. A person commits the offense of “invasive visual recording” if they photograph or take a video of a person, without that person’s knowledge or consent, in a bathroom or changing room, or while they are in an undressed state in any other private location. This is a state jail felony, which can carry a lengthy sentence.

Another issue that has arisen in some divorce cases involves sharing intimate photos with others, such as by posting them on the internet. While the person in the photos might have consented to the photos themselves, they did not consent to having them shared online. This is also a state jail felony under Texas law.

Mail, Email, Text, and Social Media Communications

Written communications between you and your spouse belong to both of you in equal measure. You might be able to obtain communications between your spouse and another person through discovery. Opening or accessing communications between your spouse and another person without permission from them or the court, however, could get you into serious trouble.

Mail

Opening another person’s mail without consent is a federal crime. Mail theft can result in up to five years in prison.

Electronic Communications

Both Texas and federal law prohibit accessing another person’s electronic communications without their permission. This can include text messages, emails, and private social media messages. A violation of the Texas statute could be a Class A misdemeanor or a state jail felony.

Other Electronic Evidence

Computer Files

If you and your spouse share a computer, which both of you own and use, neither of you have a reasonable expectation of privacy in the information stored on its hard drive. If you each have your own computer, however, privacy protections and laws against computer hacking may apply.

GPS Tracking

Texas makes it a serious misdemeanor to install a tracking device on a vehicle “owned or leased by another person.” If you and your spouse jointly own or lease a vehicle, this statute might seem like it does not apply. In the context of a divorce, however, this could still be legally problematic.

What Can You Do With This Kind of Evidence?

The various methods of surveillance and information-gathering described here may involve a great deal of time, effort, and financial investment. It is worth asking how helpful this kind of evidence can be in a divorce case. There is no one-size-fits-all answer, of course. Any evidence offered in a divorce case must meet the standard for admissibility set forth in the Texas Rules of Evidence:

The evidence must be relevant to the issues presented in the case; and
They must not have been obtained in violation of the law.

Board-certified family attorney Stacey Valdez practices in the greater Houston, Texas area. She represents people during some of the most difficult ordeals they will face, including divorce, child custody disputes, and other family law matters. As a client of Stacey Valdez & Associates, you and your family will always be a top priority for our team. We are committed to advocating for our clients with compassion, support, and tireless advocacy. To schedule a confidential consultation to discuss your case, please contact us online, or give us a call today at (713) 294-7072. Your first meeting with us is free in most situations.

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