Family law attorneys are all too familiar with the common refrain: “My spouse [or ex-spouse] is harassing/stalking me.” While most matrimonial attorneys know the elements of those crimes – N.J.S.A. 2C:33-4 (harassment) and N.J.S.A. 2C:12-10 (stalking) – and, of course, the differences between colloquial parlance and the statutes, things get stickier when our clients are themselves accused of harassment or stalking. The situation can become even more complicated when a client seeks to investigate their spouse (or have that spouse investigated by a third party) using real-time tracking methods such as GPS. 

For various reasons that may include: (i) catching a cheating spouse; (ii) the quest to prove cohabitation under seemingly varied standards, compare Landau v. Landau, 461 N.J. Super. 107 (App. Div. 2019) with Temple v. Temple, 468 N.J. Super. 364 (App. Div. 2021); or (iii) infatuation with an unrequited love, the use of GPS devices has exploded. Unfortunately, there are limited hard-and-fast rules. One example, however, is that GPS monitoring and real-time use of the data by the “spy” to let the victim know, in essence, “I am watching you [because I am a creep]” is likely a crime and an act of domestic violence. Beyond that, as in many areas of law, the question of whether the use of a GPS unit becomes an actionable offense is often a fact-sensitive determination that hinges on credibility. Fortunately, our case law provides useful guardrails as we advise clients who seek to use GPS or video technology to track their current or former spouses. Unpublished cases, too, can shed light on the conundrum.Often, the difference between stalking/harassment and permissive investigation centers on what the client does with the information. This article is intended as a “refresher” for some and cautionary note for all.

DO: Beware of the Sloppy Spy

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