Snooping During Divorce in Virginia

April 10, 2015

People sometimes ask about information obtained from snooping – tape recording, emails, voicemails, and Facebook.  Is it legal in Virginia? Can I use that evidence in negotiation or trial?

Tape recordings – some spouses will try to tape record their spouse to catch the other party doing something inappropriate.  Virginia is a “one-party consent” state – which means that at least one person has to know the conversation was being recorded.  So if you are having a conversation with your spouse, and you decide to tape record it, that would be perfectly fine, because you knew the recording was taking place, and thus consented.  However, if you just place a running tape recorder in your spouse’s purse, and hope to catch her making incriminating statements to a third party, then that recording is not legal (because neither your spouse nor the third party knew consented to the recording).

Emails and voicemails – With emails and voicemails, the important concepts to consider are “expectation of privacy” and “authorized access.”  If you know your spouse’s code to unlock her phone, and sometimes use it to make calls or write texts, then you could argue you are an authorized user and can look at the phone’s content (such as emails, voicemails, and text messages).  Your spouse doesn’t have an expectation of privacy in her phone in that circumstance.

Facebook – Facebook is a whole different question – the posts on someone’s timeline or photographs are completely public.  There is no expectation of privacy.  But remember that the posts may be deleted at any time.  So if you want to preserve something, print it out or save it.


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