October 18, 2013
I am often asked questions about spying on a spouse: “can I record my spouse?”, “can I read my spouse’s emails?” or “can I put a GPS on my spouse’s car?” The answers to these questions can be surprisingly complex and often extraordinarily fact-dependent. Federal and state laws may come into play. Moreover, this area of law is constantly changing as new technologies emerge to facilitate this form of espionage. Below is a brief summary of some general rules to consider. Like all of the posts on this blog, the information provided is NO SUBSTITUTE for consulting with an attorney.
“Can I make a tape recording of my husband?” Many spouses consider using a tape recorder (or similar audio-only device) to catch their spouse saying something inappropriate. Virginia is a “one-party consent” state, which means it is illegal to record a conversation between two people unless at least one of the people consents to the recording. So, for example, you may record yourself and your husband having a conversation, because you have knowledge of the recording and you consent to it. You may not, however, hide a recording device in his car hoping to catch him with another woman (unless one of them consents to being recorded). Recording a telephone conversation and/or making a video-recording may triggers different legal regulations that I will not touch upon here other than to note that both are substantially more risky and difficult to legally obtain.
Whether the issue is child custody, infidelity or domestic violence, an audio recording can often be quite helpful. Before making such a recording, however, it is advisable to speak with an attorney.
“Can I snoop into my wife’s email?” Emails are often a treasure trove of divorce-related information. Though the law regarding access to your spouse’s email account is evolving, the most important concepts appear to be “authorized access” and “expectation of privacy.” When your wife knows that you know the password to unlock her iPhone and you use her iPhone to occasionally make calls, browse the internet, start videos for the kids, etc., you are probably authorized to use her phone and look at its contents. She has no expectation of privacy. Knowing your wife’s password is very different than guessing it or obtaining it without her knowledge. In such cases, you probably do not have authorization to look through her phone. She has an expectation of privacy.
Determining what constitutes “authorization” can be thorny. Do you have a “family password” for all password protected items? Has your spouse given you limited authorization to access certain materials, but not others? Can your spouse authorize you to view her work email account? If you feel like you are invading your spouse’s privacy, it would be a good idea to speak with an attorney before moving forward.
Two other related notes: First, “spyware” is nearly always a bad idea. Often, it’s also illegal. Second, using your FaceBook account to view your spouse’s FaceBook timeline is perfectly acceptable. That is public material; there is no expectation of privacy.
“Can I put a GPS device on my husband’s car?” There is conflicting authority on whether you can place a tracking device on your spouse’s car. The U.S. Supreme Court has held that police officers may not place a GPS tracking device on an individual’s car where there is no warrant in place to do so. Does that decision create a blanket prohibition or is that decision limited to police procedure? Virginia has a statute that discusses “motor vehicle recording devices” that indicates such devices are permissible provided the information is accessed only by an owner or owner’s agent. Many attorneys, me included, believe the issue boils down to ownership: if you own the vehicle (or if you are a joint owner), you can consent to such a device being placed on your vehicle. Reasonable attorneys disagree about this issue.
If you’ve got questions about these issues, feel free to drop me a line. Jason A. Weis, Esquire – Curran|Moher P.C. – email@example.com – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020.
April 18, 2013
In an earlier post I offered to share certain provisions of a generic Property Settlement Agreement to highlight both why such provisions are typically included in professionally drafted agreements and how such provisions can be helpful to parties and lawyers. Most of the provisions I’ll share are considered “boilerplate;” similar provisions appear in virtually all well drafted property settlement agreements. Naturally, while these provisions may be helpful to include in an agreement, collectively they are no substitute for a comprehensive agreement drafted by an experienced family law attorney.
A common provision missing from many client-drafted separation agreements (and some divorce lawyer-drafted agreements as well) is a provision regarding attorney’s fees for enforcement.
ENFORCEMENT OF PROVISIONS OF AGREEMENT. The parties agree that any reasonable expenses incurred by a party in the successful enforcement of any of the provisions of this Agreement, or in taking action as a result of the breach of this Agreement by the other party, whether through litigation or other action necessary to compel compliance herewith, or to cure such breach, shall be borne by the defaulting party. Any such expenses incurred by a party in the successful defense to any such action shall be borne by the party seeking to enforce compliance. “Reasonable Expenses” as referenced herein shall include, but not be limited to, counsel fees, court costs, and expenses of travel.
Such provisions give teeth to the agreement. If a clear breach exists, the “innocent” party benefits from knowing his/her reasonable costs will likely be shifted to the other party when the breach is proven. If, on the other hand, the breach is less clear, the “innocent” party might pause to consider the prospect of paying the other side’s costs if the breach cannot be proven.
Note also that “reasonable expenses” will often vary from jurisdiction to jurisdiction and often from judge to judge. A court may award you some, none or all of your expenses depending upon the particular circumstances. If you’ve got questions about property settlement agreements and/or attorney’s fees, feel free to drop me a line.
Jason A. Weis, Esquire – Curran|Moher P.C. – firstname.lastname@example.org – 3554 Chain Bridge Road, Suite 100, Fairfax, VA 22030 – 571-328-5020.
February 8, 2013
I’m pleased to announce that I’ve been named a “Super Lawyer” in Virginia for 2013 in the Family Law practice area. That designation is reserved for less than 5 percent of the lawyers in the Commonwealth. I appreciate the support of my clients and professional colleagues in this regard. I’m still working out the details with the publication and awaiting the issuance of my cape.
More information about Super Lawyers can be found at: http://www.superlawyers.com/about/selection_process.html
My experience and background reflect the hallmarks of success one must demand of a lawyer in Northern Virginia's legal landscape. As a native of this area, I have here focused my practice on providing sound and balanced representation to clients navigating the difficult legal waters of family law, including contested divorce, custody, visitation, spousal and child support, and equitable distribution. More >>>
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Thank you for taking the time to read this blog. I hope you find the information here as enjoyable to read as I find to write. Please note that reading this blog does not create a legal relationship between you and Jason A. Weis, Esquire or any other attorney associated with familylawva.com. Moreover, all postings on this blog are merely attorneys' commentary on the state of family law in the Commonwealth of Virginia. THE POSTINGS ARE NOT LEGAL ADVICE – if you have a legal issue or question, I strongly encourage you to contact a lawyer. I would be pleased to refer you to someone if I am able.