tracking device in an Illinois divorce

Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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Tracking Devices In An Illinois Divorce

tracking device in an Illinois divorce

A divorce usually means a complete loss of trust in a spouse…and a lot of unanswered questions. It may be tempting to know where your spouse is at all times in order to answer those questions.

The bevy of modern tracking devices that allow a spouse to spy on another is mind-bogglingly large. However, any attempt to ascertain your spouse, ex-spouse or soon-to-be-ex-spouse should consider the legal implications of tracking and possibly stalking your spouse. You may be risking future parenting time, court sanction or even a criminal charge by tracking your spouse during or after an Illinois divorce.

There are essentially two ways to track someone, via their automobile or via their phone.

Tracking Your Spouse’s Automobile During Or After An Illinois Divorce

Planting a tracking device on your spouse or ex-spouse’s car is illegal in Illinois.

“A person or entity in this State may not use an electronic tracking device to determine the location or movement of a person.” 720 ILCS 5/21-2.5(b)

An electronic tracking device could literally be anything.

“”Electronic tracking device” means any device attached to a vehicle that reveals its location or movement by the transmission of electronic signals.” 720 ILCS 5/21-2.5(a)

There is an exception to the bar against tracking a vehicle and that’s if you own the vehicle.

The law against tracking a vehicle does not apply “when the registered owner, lessor, or lessee of a vehicle has consented to the use of the electronic tracking device with respect to that vehicle.” 720 ILCS 5/21-2.5(c)(1)

So, if your spouse is driving a vehicle that you, personally, own or lease you will not be punished if you track that automobile under this statute (but you may be punished in other ways)

Most new cars have GPS positioning technology that allows them to use maps and directions. This technology usually enables tracking but again is not a violation of the statute.

If is not a violation of the statute if the tracking occurs via “telematic services that were installed by the manufacturer, or installed by or with the consent of the owner or lessee of the vehicle and to which the owner or lessee has subscribed. Consent by the owner or lessee of the vehicle constitutes consent for any other driver or passenger of that vehicle.” 720 ILCS 5/21-2.5(c)(5)

Again, you would need to be the owner of lessor of the vehicle to legally track the vehicle via GPS or otherwise.

Illegal use of a tracking device is “is a Class A misdemeanor.” 720 ILCS 5/21-2.5(d)

A class A misdemeanor can carry a possible jail sentence. “The sentence of imprisonment shall be a determinate sentence of less than one year.” 730 ILCS 5/5-4.5-55

In lieu of a tracking device, in Illinois you can subpoena the Illinois Tollway for all the data related to an individual’s IPASS.

Of course, you’ll have to provide notice to your spouse or ex if you’re requesting their IPASS information. They will then have the opportunity to object to that subpoena being answered by the Illinois Tollway.

Tracking Your Spouse’s Phone During Or After An Illinois Divorce

A phone is always keeping a record of where it is. A phone is a computer. Getting information from someone’s phone’s history regarding their location is accessing their data. Without permission, accessing the data from someone’s phone is a crime.

“A person commits computer tampering when he or she knowingly and without the authorization of a computer’s owner or in excess of the authority granted to him or her:

(1) Accesses or causes to be accessed a computer or any part thereof, a computer network, or a program or data” 720 ILCS 5/17-51(a)

“A person who commits computer tampering as set forth in subdivision (a)(1)…of this Section is guilty of a Class B misdemeanor.” 720 ILCS 5/17-51(a-10)(1)

For a class B misdemeanor “[t]he sentence of imprisonment shall be a determinate sentence of not more than 6 months.” 730 ILCS 5/5-4.5-60

Curiously, the law against eavesdropping on private electronic communication does not include tracking devices.

“Electronic communication does not include any communication from a tracking device” 720 ILCS 5/14-1(e)

When Tracking Becomes Stalking In An Illinois Divorce

Learning about someone’s location when they’re in public does not seem like a big deal (to you). But, it becomes a really big deal if they become afraid for their safety because of the tracking. That’s when tracking becomes stalking.

“A person commits stalking when he or she knowingly engages in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to:

(1) fear for his or her safety or the safety of a third person; or

(2) suffer other emotional distress.” 720 ILCS 5/12-7.3(a)

“Stalking is a Class 4 felony” 720 ILCS 5/12-7.3(b)

A class 4 felony in Illinois is punishable by a “sentence of imprisonment shall be a determinate sentence of not less than one year and not more than 3 years.” 730 ILCS 5/5-4.5-45(a)

Other Repercussions From Tracking Your Spouse During or After An Illinois Divorce

Tracking where a spouse is usually pointless. Most tracking is done to prove adultery which an Illinois divorce court will typically never consider.

An Illinois divorce court “shall divide the marital property without regard to marital misconduct in just proportions” 750 ILCS 503(d)(emphasis my own)

Outside of cheating, proving a spouse is at a bar or strip club is not evidence of dissipation of marital assets. Allegations that money was spent improperly require evidence that money was spent…not more presence.

Furthermore, while hanging out a bar all day may not be the greatest idea for a parent on their non-parenting days, it likely won’t impact their parenting time. A parent’s behavior outside of the presence of the children is almost always irrelevant.

“In allocating parenting time, the court shall not consider conduct of a parent that does not affect that parent’s relationship to the child.” 750 ILCS 5/602.7(c)

“Parental conduct that does not adversely affect the child is not to be considered in the custody determination.” In re Marriage of Stone, 164 Ill. App. 3d 1046, 1053 (1987)

If you want to track your spouse to determine where your children are, just ask your children. If your children are verbal, your children will tell you. Furthermore, if you own your child’s phone you can track your child via your child’s phone (unless your Parenting Plan forbids that).

The person who should be doing any investigation of a parent is a Guardian Ad Litem, a third attorney who represents the best interests of the children.

“The guardian ad litem shall investigate the facts of the case and interview the child and the parties.” 750 ILCS 5/506(a)(2)

But, buyer beware. A Guardian Ad Litem will almost always investigate both parents equally.

Alternatives To Tracking Your Spouse During Or After A Divorce.

In America, it is almost impossible to do anything without spending money. Your spouse’s credit card statements will tell you where they were and when. If that doesn’t work, cash withdrawals from ATMs can also be tracked.

Any additional information as to your spouse’s whereabouts can be found…by asking them in a deposition under oath.

The answers you are looking for had better be worth it…because the truth gets expensive in an Illinois divorce proceeding. Your spouse or ex-spouse may be willing to pay more via settlement to avoid that truth.

Contact my Chicago, Illinois family law firm to learn more about what you should uncover and what you should merely threaten to uncover.