Family law options such as collaborative law and divorce mediation are often good options if the spouses can reach amicable agreements with respect to issues of child custody, property division and visitation. However, sometimes contentious disputes over hidden assets, infidelity or other deception cause hard feelings that may require a judicial determination of key divorce issues.
Admissions or evidence of adultery are the most obvious source of ill will in divorce, whether a spouse’s lack of faithfulness is the primary motivating factor in the divorce or the infidelity is discovered during the divorce process. While a spouse can uncover evidence of adultery in many ways, sometimes a wife or husband finds it necessary to seek professional help to confirm his or her suspicions.
A recent New Jersey appellate court opinion considered the role of technology in investigating a spouse suspected of infidelity. The case involved a Gloucester County law enforcement officer whose wife suspected that he was having extramarital relations. She hired a private investigator in 2007 to confirm whether he was indeed having an affair. After failed attempts to successfully tail the husband, the PI recommended that she place a global positioning system (GPS) in the glove compartment of his vehicle to track his whereabouts.
The resulting evidence confirmed her suspicions of infidelity and led to a lengthy divorce that was finalized in 2009. However, the husband had further legal issues he wished to settle and he filed a claim against the private investigator for intentional and negligent invasion of privacy, alleging that he had suffered emotional harm as a result.
A Spouse’s Right to Privacy in Divorce Investigations
The trial court entered summary judgment in favor of the defendant private investigator, which means that, viewing the facts in a light most favorable to the plaintiff husband, he had failed to state a claim upon which the court could grant relief. The husband appealed the decision to the Superior Court, Appellate Division, which affirmed the lower court’s decision.
The three-judge panel of Appellate Division judges unanimously agreed that placement of the GPS unit in the vehicle did not result in a tortious invasion of privacy. The judges acknowledged that the husband may have had some expectation of privacy in a vehicle licensed for use on public roadways because a vehicle can be driven to private or secluded locations. But the husband did not present any facts to indicate this had happened.
The court referred to the New Jersey Constitution in acknowledging an individual right to privacy, which provides that “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.”
New Jersey case law provides that the tort of invasion of privacy encompasses four distinct types of actionable “invasions”:
•Intrusion on a person’s solitude or seclusion
•Public disclosure of private facts
•Placing the person in a false light in the public eye
•Appropriation of the person’s name or likeness
The court rejected the husband’s argument that installation of the GPS tracking device had intruded upon his solitude or seclusion. The court found that “there is no direct evidence in this record to establish that during the approximately forty days the GPS device was in the glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along to defendants.” While the opinion leaves open the possibility of a spouse’s right to sue under other facts, the judges cited established law that a person driving in a personal vehicle on public thoroughfares has no reasonable expectation of privacy with respect to his or her travels from one place to another.
Evidence of Adultery in a “No-Fault” World
Marital infidelity has very little formal relevance in contemporary divorce proceedings, because a spouse who wants a divorce no longer needs to establish circumstances that justify a legal dissolution. That said, any information that reflects unfavorably upon an individual can have an effect on divorce issues such as determination of child custody and visitation schedules. A divorce lawyer can advise a client about the best course of action if either spouse’s actions are likely to be viewed unfavorably by a judge in the Family Practice Division of New Jersey Superior Court.
Article provided by Middlesex County NJ Family Law Attorney – Jeffrey W. Goldblatt Law Office
