We live in an age in which most of us communicate electronically, sometimes much more than we communicate face to face. Emails and texts can be revisited and reviewed after the fact, and for people who are preparing to get divorced, that can be a very tempting prospect – especially if there’s a secret being kept in electronic communication.
If a person getting divorced suspects his or her spouse of infidelity, or of hiding some other indiscretion, he or she might think that investigating it, to perhaps have something tangible to bring to court, might be the best idea.
But it’s against both state and Federal law to look through someone’s email or text messages without their consent, even if you’re that person’s spouse. It could easily backfire to try to bring in a spouse’s email to try to prove infidelity, and as your lawyer in that situation, I wouldn’t want to take that risk.
There is the question, however, as to emails or texts that are happened upon through a shared device. Let’s say that a couple shares a computer, and the husband leaves his email browser up for his wife to discover. In that instance, it’s a case of “fruit from the poisonous tree” – it will wholly be up to the judge’s discretion as to whether that will be admissible should it be introduced. The judge might find it legitimate evidence, or might say “shame on you” to the party who brought it before the court.
There was a famous case in 2015 involving rock music couple Gwen Stefani and Gavin Rossdale. Rossdale was allegedly having an affair with the nanny they hired to look after their children. According to a magazine report, it came to light because incriminating texts between Rossdale and the nanny showed up – via the magic of Apple sharing texts to multiple devices – on the family’s iPad. If something like that happened, it would still fall under the “fruit from the poisonous tree” category.
Once you enter the divorce process, you should definitely change account passwords and should not share electronic devices – even if you have nothing to hide. Even the most innocent items could be twisted to appear incriminating. You certainly don’t want your spouse mining your email account or phone for any information at all – what your spouse needs to know should be voluntarily disclosed or, if necessary, revealed through the discovery process.
It’s also a good idea to comb through your social media accounts before you start the divorce process. Anything that might be perceived to work against you – no matter how petty it might be seem – should be made private if not outright deleted. After all, while personal emails can’t be used in court, social media accounts available for public view certainly can.