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Can You Access Your Spouse’s Electronic Information During a Divorce?

During a divorce, ex-spouses will be tempted to use every advantage to “win” the case. Since spouses were often intimate during their marriage – even sharing private information with one another – fights between spouses can be nasty, brutal, and long. Many spouses will use passwords to access personal accounts to look for proof of wrongdoing. The Electronic Communications Privacy Act (ECPA) was enacted in 1986 to protect against such digital intrusion. Unauthorized access to email may carry severe penalties – in both divorce and criminal court.

Can I Record Phone Calls?

The answer will differ wildly depending on each state. Some jurisdictions, like North Carolina and Virigina, permit one party recordings. It is permissible to record a phone conversation as long as one of the parties knows and consents to being recorded. Other states, like California, require two party consent; both parties must know and consent to their conversation being recorded.

However, almost all states require a warrant before recording phone conservations in which the recorder is not one of the parties. If you plan to record your spouse and his or her suspected lover, think twice – you will almost certainly be breaking the law.

What If My Spouse Is Saying Nasty Things About Me on Social Media?

It is not uncommon for ex-spouses to say terrible things about the other on Facebook or Twitter to their friends and family. Obviously, any one-sided Facebook statues will likely result in the other spouse being alienated from his or her social circle.

Courts do have the power to order spouses to “add” their spouse to social media as a means of monitoring any potential libel. However, this only comes up if the couple has minor children. Children should not have to see their mother attacking their father’s character on social media. In that instance, the Court can require that the mother “add” the father to social media to ensure that the other parent does not derail normal parent-child relationships.

divorce_loginWhat If My Spouse Gave Me Their Passwords While We Were Still Together?

The ECPA prohibits “unauthorized” access or use of private information. However, if a spouse voluntarily provides the password, then you would have implicit consent. This implicit consent only goes so far though – if you use the password to access accounts other than the email it was meant for, there would likely be no consent granted. If a wife gives her husband a password to check her Gmail, but that same password works for her Wells Fargo account, implicit consent would only exist for the Gmail but not for the Wells Fargo account.

We Separated. Can I Still Read My Spouse’s E-mail with the Password They Gave Me?

When spouses give their passwords to one another, the law assumes that the password was for a specific purpose. If you have your spouse’s email password, it’s probably to check e-mail that the two of you received as a couple while you were married. If the marriage has ended, then the reason your spouse has given you the e-mail has likely ended to.

Jason Cheung


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