The Modern Day File Cabinet: When Can You Access Your Spouse’s Electronically Stored Information?

Chris RobertsChris Roberts, Principal

Your spouse is in the shower and his or her phone lights up on the nightstand… a text message from an unknown number. You unlock the phone using the same tried and true six-digit password that has served as security for countless phones, computers, and email accounts. A string of text messages between your spouse and a lover appears. So begins a deep dive into every electronic device and email account you can get your hands on.

What’s a little snooping between spouses, you ask? Depending on what data you accessed and how, you may have violated a Federal statute punishable by incarceration for up to five years and fines of up to $10,000, per violation. That means that if you read three of your spouse’s unopened emails without his or her consent, you’re looking at a potential 15 years in the slammer and $30,000 in fines.

Don’t Access Your Spouse’s E-mails and Text Messages Without Their Consent

Electronically Stored Information, often referred to as ESI, can take many forms. One bright line distinction is whether or not the ESI is “in transit” when it is obtained. Federal law and many state statutes prohibit the interception of electronic communications without the knowledge and consent of at least one party to the communication. This means that you cannot open an unread email sitting in your spouse’s inbox unless they are aware and consent to your doing so.

This same prohibition applies to the interception of text messages, messages on social media, phone calls, or any other type of electronic communication. As a simple rule of thumb, if you have to access the information on any type of electronic device, it is probably illegal to do so.

Not only is it a crime to intercept electronic communications, generally speaking, illegally obtained evidence is not permitted to be used as evidence in court. So that smoking gun you found by rifling through your spouse’s DMs likely will do you no good in a contested hearing.

The Family Computer Is a Different Story

The same prohibitions do not apply to static data no longer in transit, which is stored on the hard drive of a desktop, laptop, or other electronic device.

Whether or not you can make use of static ESI hinges on whether you have legitimate access to the device. If data is protected by a password that only your spouse knows, in most cases you are not permitted to guess your way into the machine or otherwise hack your way into the data.

Think of a computer as a filing cabinet in the marital home. If the filling cabinet is unlocked, you have a key, or everyone in the house knows the key is somewhere in the junk drawer in your kitchen, you clearly have a right to access the files in the cabinet. If only your spouse has the key to the cabinet and it is known to be off-limits, you may not have a right access it.

Similarly, if your spouse has given you the password to a computer or other electronic device, in most cases you can access the data on the device. The same may go for a device protected by a commonly used family password. Not only can you access these devices, you may also rely on the assistance of an expert to obtain or analyze the data. This can include clandestine imaging of the device, which allows you to obtain all of the data on the device, preserving it for later use and analysis. Hard drives or other electronic storage may include financial information, family budgets, account information, estate planning, and a wealth of other information.

Other Considerations Related to ESI

If you have any reason to anticipate a dispute or court litigation with your spouse, you should never destroy data. Litigants have a duty to preserve evidence, and the destruction of evidence, also knowns as spoliation, can result in severe sanctions in a court litigation. This could include a judge dismissing your court filing and requests for relief altogether. It also may paint you as a ‘bad actor’ in the Court’s eyes, which can negatively impact your case in a number of ways.

There are many software programs with allow you to capture data from a device as it is generated, including keystroke logging software and similar programs. Keep in mind that, even though you are not actively monitoring the device, you will be held responsible for whatever the program is doing. These programs may be violating Federal or state law, which means you may be breaking those same laws.

In addition to Federal law related to the collection and use of ESI, each state has its own laws, which may differ from the Federal rules and those in other states. Consideration of efforts to collect or use ESI is heavily reliant on the specific rules and language of the applicable statutes, as well as the specific facts in each case or circumstance involving ESI.

If you have any question about the legality of your efforts to pursue ESI, you should consult with an attorney familiar with the applicable laws in your jurisdiction. In many cases, they may also suggest consultation with a forensic computer expert. Getting this advice and guidance early on may not only keep you out of trouble, but could also enable you to safely and legally capture ESI that could be invaluable later.

My Spouse and I Have a Verbal Agreement. What is the Quickest Way to Obtain a Divorce in Maryland?

AvatarDonna E. Van Scoy, Principal

The short answer is: it depends.

Obtaining a divorce in a short marriage with no children and few, if any, assets is very different than a long marriage with children and assets. Then there are marriages in between the short marriage and the long marriage with combinations of no children or children and a variety of assets.

A logical first step is to contact a lawyer. While you and your spouse have reached a verbal agreement and are working together, a lawyer cannot represent both parties in Maryland. No matter your level of cooperation and intentions, you and your spouse can easily have conflicts of interests in a divorce. So one or both of you should to consult with a lawyer.

Moving the Process Forward

  1. Be open to the fact that you and your spouse may not have considered every issue that needs to be addressed in your divorce. It is possible that what you agreed to with your spouse will negatively affect your rights. A lawyer will explain the law, review your agreement, and identify any issues. TIP: Do not sign any agreement with your spouse before reviewing with a lawyer.
  2. Both you and your spouse should each meet with a lawyer. While you have the right to obtain your divorce without the assistance of counsel, in my experience that can result in delay and greater expenses than securing legal advice at the beginning of the process. If your spouse does not want a lawyer, you can be the party that moves the divorce along. However, your lawyer will need to recommend to your spouse (in writing) that they obtain counsel. Your lawyer could provide two or three names of other counsel for you to share with your spouse. Then hopefully your spouse will also seek counsel, or at the very least your spouse could review the final agreement with an attorney.
  3. To assist in the evaluation of your case, come prepared to your initial consult. Write down what you believe is your agreement with your spouse. Bring a list of all your assets including current values and any debt associated with the assets. Bring a copy of your current mortgage statement, your last three years of tax returns, your last three paystubs and, if possible, your spouse’s last three paystubs. If there are children consider how you and your spouse will parent your children and what the children’s schedule will be with each parent.
  4. Once you have all the information necessary to propose a settlement to your spouse, a Separation Agreement will need to be drafted. Your spouse (and counsel) will need to review and approve the agreement. If both of you continue to cooperate with each other in the spirit of divorcing as quickly as possible, the Separation Agreement could be completed and executed as soon as your lawyer can draft the agreement and your spouse can review and approve. While it can be longer or shorter, the average completion of an agreement is 30 to 60 days.
  5. The next step is to file a complaint for an uncontested divorce. Your spouse has to be served and has up to 30 days to file an answer. The fastest ground for the divorce is a Mutual Consent. You and your spouse can speed up the answer time up by working to file the complaint and answer at the same time or together.
  6. The court will then schedule an uncontested hearing. The moving party (the one who files) and their lawyer need to be present. The other party (and their lawyer) can also be present. During COVID19 the hearing is being held remotely. While these are uncertain times, the hearing is normally scheduled in four to eight weeks. The divorced is usually finalized in within 14 days.

The information above depends on a settlement being reached and the parties truly working together. Each case is different. Contested cases can take anywhere from a year or two, or more. Again, involving a lawyer once you start considering a divorce will help you have the information you need to manage your divorce as efficiently as possible.