Who owns the digital version of you? We have become so accustomed to our digital world of social media, emails, instant messages, and photos of cats that we seldom consider who owns all that information. With the U.S. House of Representatives voting to undermine internet privacy1, this is no longer an academic question. When in the process of a divorce or separation, your digital presence becomes an alternative reality with hard-hitting consequences for your life in the real world.
High Crimes and Misdemeanors: Hacking Your Spouse
Justice and law are scalable. Some offenses are small, and carry small punishments, like Virginia Beach parking tickets. Some are big, like violating wiretapping laws (that’s a federal crime). Ordinary Virginians may accidentally find themselves in violation of the Wiretap Act by simply reading a spouse’s emails, or forwarding them to his own email without her consent.
The idea that commission of one crime is somehow appropriate while investigating another crime does not hold sway with judges, as highlighted by a December, 2016 case2. The husband in this case, Barry Jay Epstein, sued his wife, Paula Epstein, over her hacking of his emails in her attempt to uncover his adultery. Barry Jay’s crime, despicable as it is (and illegal in Virginia as well as in Epstein’s state) does not absolve Paula of her crime, wiretapping (intentional interception of any wire, oral or electronic communication).
Paula Epstein was no Sherlock, but her illegal act did uncover his illegal act. One of the appeals court judges had a certain sympathy for her, hoping in his opinion that she was rewarded by a generous award in her divorce. The whole proceeding may be a wash, as his lawsuit could claw back whatever her divorce award is.
Snooping for Evidence? Don’t.
The Wiretap Act predates the internet era, but it is strictly (if selectively) enforced in our digital world. During a separation or divorce proceeding, you may feel zealous about capturing your hoped-for ex-wife’s emails, Instagram pictures, Snap Chats or whatnot. Unless you are an approved recipient of her social media, or you two share a computer and an account, you have no legal right to bypass passwords or forward her information, even to yourself. Think of it like this: “What is mine is mine, not hers; what is hers is hers, not mine.”
Even as you go into the drawn-out process of a separation or divorce, you still need to keep a level of trust between the two of you. Why deliberately erode that trust by sneaking around in search of some “smoking gun” email that probably does not exist anyway?
Your Divorce Attorney’s Opinion
If you value the adept legal work done by your attorney, listen as the Wiretap Act is explained to you. Some judges may view the issue with wide latitude, and say the ill-gotten evidence of infidelity is just fine, but most Virginia judges will not condone it. Your attorney can best advise you on rules of evidence.
In general, the evidence needs to be more or less in plain sight. Any blocks — her computer is off and needs a password to turn it on; her email requires a password or a two-step verification; the computer requires a thumbprint — put the material off limits to you.
You would be doing badly enough damage to your case if you were snooping into your spouse’s emails without her permission, or sending her threatening, obscene or harassing emails; what if your lawyer did it?
In Georgia, an attorney acting as his own lawyer in his own divorce sent threatening emails to his ex-wife’s attorney. What a truly awful idea. The case is still unfolding, but you know the old expression: a person acting as his own lawyer has a fool for a client.
Handle Your Digital Affairs Before Beginning Your Divorce
From the Gander/Goose department, think about this: would you enjoy the court displaying your own emails, Tumblr followings, Instagram pictures, Instagram My Story, Twitter tweets and the rest?
This also not-so-subtly implies that you should be extremely careful with everything you do, see, save and send during your separation and divorce. In fact, cleaning up your digital footprint and history is one of the three or four keystones to a successful and clean break:
- Get financial affairs in order
- Save for the process
- Start a written journal of events
- Edit, self-censor and delete your social media and digital trail
You should do all these things before beginning the legal process, because once you start, you may not have the luxury of deleting anything, if it can be brought as evidence by your wife’s attorney.
As your divorce case proceeds, you may well be tempted to vent and rage against the vast indifference of a cold universe (and overworked Virginia court system), but keep your drama offline. Maintain social friendships; speak ill of no one; oh, and never take the bait.
Do You Suspect Your Wife is Spying on You?
Your spouse may push every button you have, including the “Send” button. Do not fall for it. She may bait you with messages, images, emails and all the rest. Stay as dispassionate as possible, because something you agree to in an email could be used to set groundwork for a legal obligation.
Get into the habit of saying something impersonal, like “I have received your message; I will consult with my attorney and respond appropriately.” After the divorce, you no longer need to do this: electronic messages that include your assent to something cannot form the basis of a legal agreement.
As you consider your separation or divorce, you face many unforeseen challenges. The digital world is full of tricks and traps. For professional advice and legal counseling, please call The Firm for Men at 757-383-9184. We’ve been serving all of Hampton Roads from Virginia Beach, Chesapeake, and Norfolk to Hampton and Newport News for over a decade and we represent men only! We much prefer telephones than e-mail, for obvious reasons.