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  • Dean Smith

The Fine Line Between Investigating a Divorcing Spouse and Criminal Stalking

The day finally arrived. You’ve chosen to file for divorce, and one of your first steps was to hire a private investigator. Perhaps there’s a few questions you’d like answered. Maybe you suspected your spouse of infidelity or concealing assets. Obtaining evidence of either could make the difference between a divorce settlement that leans in your favor or skewing against you.

Discovering whether your spouse is already cohabitating with another partner, or found new employment they haven’t been honest about, is a typical reason people begin digging into their spouse’s affairs, either on their own or through an investigator. This is particularly commonplace when one spouse is suspected of less than marriage-worthy behavior, their and they want to gather court-admissible information.

Hiring a private detective to investigate your partner and/or shadow them is legal. Depending on the context of your case, however, it may not be your wisest decision. If a judge decides you’re criminally stalking, rather than legally gathering information, it can also lead to jail time.

The state of New Jersey defines criminal stalking as, “Purposeful conduct directed at specific person that would cause a reasonable person to fear bodily injury or death to himself or family member and knowingly, recklessly, or negligently places person in reasonable fear of bodily injury or death to himself or family member.” This means that engaging in threatening or intimidating activity, directed at your spouse, is likely classified as criminal stalking.

Investigating your partner, whether in your own capacity or through a private detective, does not, in and of itself, constitute stalking.

Provided there is a legitimate reason, and a purpose other than hounding, frightening, intimidating, or threatening your partner, you’re nestled safely on the right side of the law.

Following someone overtly, and/or in a relentless fashion, for intimidation purposes, or using discreetly gathered information to send your spouse, their new partner, employers, threatening letters or images, however, typically constitutes stalking. This may seem like “common-sense,” but it’s a line that’s crossed with surprising regularity.

Consider the role that following or shadowing plays. The popular conception of stalking is shaped by stories of one individual following another, but, when practiced within the letter of the war, discreet shadowing is a legitimate, and commonly used, tactic.

For example, perhaps a woman hires a private investigator to shadow her husband, who’s seeking custody of their children in their divorce. She believes, or has reason to suspect, he’s abused or, is abusing, their children, oftentimes publicly. Hiring a private investigator to observe her husband’s interaction with the children at a public place is profoundly unlikely to be considered stalking. She has a reasonable, legitimate, purpose to obtain this information, and intends to use it as evidence in the divorce proceedings.

On the other hand, if the same woman repeatedly follows her husband, whether on her own or through a private investigator, just to let him know she’s there… and she’s watching. Most judges will turn a serious, and disapproving, eye to her conduct.

Let’s assume she gathers evidence that he is/was unfaithful and confronts him, stating she knows the identity and residence of his new partner, or reveals the information she obtained regarding his child abuse, and demands he cease pursing custody in their divorce. This behavior is very likely to constitute criminal stalking, as there is likely no legitimate purpose for her relentless following or and statements.

This is an over-the-top example to show the broader differences, but knowing the limitations and boundaries is an important first step. Every divorce case has unique facets as does every marriage, and whether investigating your spouse constitutes legitimate information gathering, or meets the definition of criminal stalking can vary. Observing your spouse discreetly, through an investigator is often beneficial, and you can develop powerful, valuable, evidence to support your case. Most private detectives know the boundaries and ask the right questions to avoid illegal activity, but we strongly recommend consulting with your attorney beforehand.

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