Divorce presents a very foreign world to many when it comes to what they can and can’t look at and use. When someone is married, they may assume they have a right to look at anything their spouse receives and to check into anything their spouse does. While those ground rules may work during a marriage, assuming the same thing to be true during a divorce is fraught with peril.
FEDERAL LAW APPLIES
Most people going through a divorce would never imagine that a federal law designed to catch criminals who secretively snoop on others and take their data may apply to them, but it could.
There are a whole set of federal laws which were not written with divorce in mind, but which may apply to divorce. One is wire-tapping.
When someone hears the word wire-tapping they may think about the federal government tapping into a phone communication between a drug kingpin and others. But the way the law is written is not limited to this situation.
Wire-tapping involves any person recording a communication between two others. State laws vary on this. Some states allow one person to a phone call to record it. This means if you are calling someone or someone is calling you, either of you may record the phone call, without getting permission from the other.
Under the federal wire-tapping law, however, no one may record the phone communication between two other people. This means that if your spouse were to be cheating on you and your spouse has a phone conversation with his or her paramour, you cannot record it without either of them giving to you permission to record it. And if you were to record it, you may be guilty of a crime. In addition, the recorded conversation may not be used in a divorce proceeding since the recording is improper.
During a marriage, most people assume that anything their spouse does is their business. It may be their business, but it is not necessarily their right to see what their spouse does.
There is a set of federal laws about electronic communications. If your spouse does not voluntarily give to you their password, and you in some manner figure it out or obtain it and see their communications, you may be breaking federal law.
It doesn’t matter what they are saying. It doesn’t matter to whom they are saying it. It doesn’t matter what they are viewing. If you have figured out a way to read their emails/communications that are subject to a password protection, you probably will not be able to use what you have seen and you may be charged with a crime for improperly intercepting their communications.
If something is sent to your home, you might think that you can open it. But if it is not addressed to you, you do not have the right to open it.
In fact, there is federal law which says that you may not have the right to open a piece of mail that is sent to your house but which is not directed to you. This means if you were to open a piece of mail directed to your spouse that is sent to your home, you may be violating federal law.
The law does allow certain ways of obtaining information and documentation from your spouse. But it can be dangerous to assume that because you are married you have the right to see anything your spouse communicates, record anything your spouse does, or look through emails or even websites your spouse may have been on, if you do not have permission from your spouse or unless you have been given their password by them.
About the Author:
W. Stuart Scott is a litigation attorney with over 25 years of experience. He has tried hundreds of cases in both state and federal court. Some of his noteworthy victories have been featured in local, state and national publications. Stuart is also Listed as a Tennessee Supreme Court Rule 31 Family Law Mediator. Stuart focuses his primary area of practice on family law. He represents people going through divorce and focuses his efforts on providing his legal services and advice to his clients in this area. Mr. Scott may be reached in our Nashville office at 615-620-1710.