If you are thinking about separation and divorce and you suspect your spouse is having an affair you may think about checking your spouse’s email to see if there are any emails which are romantic or sexual in nature between your spouse and another man or woman. Do NOT do this without getting specific legal advice about what is illegal under the laws of your state and federal law. Generally, federal and many state laws prohibit intercepting wire or electronic transmissions. An email sent from one computer to another over the internet is an electronic transmission. Illegal interception of an electronic transmission may subject you to criminal prosecution or civil fines and penalties.
In divorce cases, unaware that they are breaking state or federal laws, and before consulting a divorce lawyer, people frequently access their spouse’s email account, open and read their spouse’s email or place software on their spouse’s computer which intercepts their emails. If the other spouse discovers the illegal interception, it can become leverage in the divorce case because of potential criminal or civil consequences.
There are limited circumstances where it is legal to read your spouse’s emails. After emails are downloaded, opened and read, they are stored in a temporary file on the computer and no longer reside on the email server of the internet provider (e.g. AOL, Yahoo or Google). Even if the email is deleted, the file containing the opened email still exists on the computer hard drive. Generally, it is not illegal for another person to read these emails if – and this is a big if – the person seeking to read the emails in the temporary file has legal access to the personal computer which stores the emails. This means that the computer is one used by both spouses, without restrictions, or is a computer to which one spouse gave consent to the other spouse to use. If the computer containing the stored emails is a computer used solely by your spouse, or is a computer which you do not have permission to use, or the computer or file is password protected then you should not access the emails stored on the computer. Lack of consent to access your spouse’s computer or password protection indicate that the computer user/owner may have a reasonable expectation of privacy in the computer or its files; violating this reasonable expectation of privacy could result in a claim against you for invasion of privacy – more leverage in a divorce case.
If you suspect that your spouse is carrying on an adulterous affair and using his or her email account to communicate with the third-party, the better course of action is to consult a divorce lawyer and arrange for imaging the computer under suspicion. Computer imaging creates an exact duplicate of a computer hard drive at that particular point in time. The lawyer may then seek consent of your spouse to read the emails or court authorization to ensure that there are no violations of the law or invasion of privacy concerns.