If I Suspect My (Former) Spouse is Cohabiting, Can I Conduct My Own Surveillance?
Jul 9, 2025 | Written by: | Share
Divorce clients sometimes ask if they can conduct their own surveillance to determine if a spouse or former spouse is cohabiting, or if that could be viewed as harassment or domestic violence. In the recent unpublished New Jersey Appellate Division case of R.A.D. v. C.D., the court addressed this interesting query, but before we discuss the case itself, a brief understanding of cohabitation may be helpful.
In New Jersey, the spouse who is the recipient of alimony (support) may be precluded from cohabitation and/or cohabitation may impact or even jeopardize support. For this reason, support can sometimes be referred to as “golden handcuffs.” This may depend heavily on the explicit terms of your specific settlement agreement; however, cohabitation may give rise to a termination, modification, or even suspension of alimony. Cohabitation may also give rise to a retroactive modification of support, which can have significant consequences. If a supported spouse is suspected of cohabitation, it may be prudent to engage a private investigator to perform legitimate surveillance, working through your counsel, to support your application to make an initial showing of cohabitation. These are important technicalities. Cohab cases are often complex and require assistance of counsel.
I have been asked by clients, sometimes before and sometimes after, whether they can perform their own surveillance, and the answer is almost always and unequivocally, “no.” Besides potential evidentiary issues, I have always been concerned about the possibility of a restraining order arising from such an endeavor, as it could be perceived as stalking, harassment, and threatening behavior.
The Appellate Division agreed that such “surveillance” can be considered stalking. In the case of R.A.D. v. C.D., the parties were married in 1998. During the marriage, their principal residence was in Cranford, NJ. They also owned a beach house in Mantoloking, NJ. The complaint averred that on January 14, 2024, the defendant "drove past the [plaintiff]'s residence four times . . . between the hours of 05[:]57 HRS and 06[:]49 HRS and then had a friend . . . drive past the home on the same date[.]" The plaintiff alleged that the friend "trespassed onto [his] property in an attempt to take pictures of his friend's vehicle." The plaintiff also alleged that the defendant previously had driven to his residence on November 18, 2023, parked in the driveway and asked him "what his friend's vehicle was doing in the driveway of [the] residence."
At a Final Restraining Order (FRO) hearing, the plaintiff testified that he found a tracking device on his vehicle in August 2023. He discovered the tracking device after he received a phone notification of movement outside of the Cranford house and he observed the defendant near the side of his vehicle. The plaintiff testified that he reviewed the video application and "thought [it] was odd" the defendant was standing near his work vehicle. Later that morning, the plaintiff inspected his vehicle and discovered a tracking device was attached underneath. The plaintiff removed the device and confronted the defendant, who denied placing the device on his vehicle. The plaintiff testified that three weeks after he found the first tracking device, he discovered a second tracking device attached to his vehicle, which he also removed. Subsequently, the plaintiff checked his other vehicle that was parked in the garage and discovered a third tracking device.
The plaintiff further testified that on November 18, the defendant drove by the Mantoloking property twice, pulled in the driveway, and photographed a vehicle parked there. The plaintiff testified that between November 2023 and the date of the Temporary Restraining Order (TRO) hearing in January 2024, he observed the defendant driving by the Mantoloking home ten to twelve other times, and he saw other vehicles driving by and stopping to take photos.
On appeal, the defendant argued that the trial court erred by issuing the FRO because the underlying acts did not constitute domestic violence under the stated purpose of the Prevention of Domestic Violence Act (PDVA). The defendant contended that her actions—driving by the shared home in November 2023 and January 2024—were not harassment. She asserted that the trial court erroneously concluded that her actions of driving by the Mantoloking property were "alarming" conduct, as the defendant's intent was not to harass but to verify her suspicions regarding the plaintiff's cohabitation. The defendant noted the trial court's failure to consider the context of divorce proceedings and its misapplication of the harassment statute trivialized the PDVA's intent. The defendant further contended that the plaintiff's claim of feeling "violated" was based on his own subjective feelings and self-serving statements. Thus, the defendant contended that her conduct was simply fact-gathering and did not rise to the level of harassment under the PDVA.
The defendant further posited the court's finding that the defendant should have hired a private investigator to obtain evidence of cohabitation rather than investigating this issue herself was error. The defendant cited the cohabitation statute at N.J.S.A. 2A:34-23(n) and asserted the elements of cohabitation can be proven through a direct investigation by a party. The defendant asserted that the court's "requirement [to hire a private investigator] infringes on a party’s right to gather evidence required to establish a prima facie case as clarified by [Cardali v. Cardali, 255 N.J. 85, 108 (2023)] . . . amounting to a violation of due process." Citing to Moynihan v. Moynihan, 250 N.J. 60 (2021), the defendant asserted that the Supreme Court found that "a legislative requirement" for parties to engage attorneys to enter into a "palimony" agreement was a "due process" violation. Similarly, she contended that the same due process analysis should apply to the court's decision requiring the defendant to engage a private investigator to investigate cohabitation claims.
The Appellate Division upheld the trial court’s finding and the issuance of the FRO, holding, “We reiterate that a finding of a purpose to harass may be inferred from the evidence and the court must use its common sense and experience when making this determination, including an evaluation of the plaintiff's circumstances. Here, the court found plaintiff's unopposed testimony to be credible. We conclude the court did not misapply its discretion by finding plaintiff's testimony—which described the incidents of harassment clearly and in sufficient detail—as credible. We are unpersuaded by defendant's contention that her purpose was to investigate claims of cohabitation, not to harass. The trial court's rejection of that contention and its finding that defendant's purpose was to harass plaintiff is sufficiently supported by the record. The trial court heard this defense and determined defendant's purpose—for driving by plaintiff's residence multiple times to take photographs—was to harass him. The court also found defendant's authorization for a third party to enter onto the plaintiff's property to take photographs also had the purpose to harass. Under these circumstances, we discern no error with the court's determination that defendant authorizing a third party to enter onto the property to take photographs, knowing plaintiff was exclusively residing there, was inappropriate, violative of plaintiff's right to privacy, and had the purpose to harass plaintiff. We conclude sufficient, credible evidence existed in the record to support the court's findings, including the parties separation and agreement for plaintiff to live in the Mantoloking house at the time of the incidents forming the basis of his complaint.”
Cohabitation cases are often complex and require the assistance of counsel. They are further complicated when there are issues involving domestic violence. These cases are extraordinarily fact-specific and require intense attention to detail. The most important takeaway is that divorcing parties should not take surveillance matters into their own hands. The potential consequences of doing so, as occurred here, can result in restraining orders and possibly even criminal charges.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2021, to the NJ Super Lawyers list in 2023, 2024, and 2025, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.