Tag Archives: Infidelity

Protect Yourself BEFORE Separating From Your Spouse

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In the heat of the moment, when things are going awry in your marriage, it’s hard to think clearly about all the practical, sometimes scary, aspects of separating from your spouse. If you have time, however, to safely slow down and make a practical plan before moving forward, here are some things to do before you begin the divorce process.

  1. Have you tried counseling?  Sometimes you just know that things are over. But if you have doubts and your spouse is willing, it can be so helpful to seek professional counseling, either together or separately. Even if your spouse is not willing to try therapy, it’s beneficial to go on your own. Having a neutral party to talk things over with, get feedback, and focus on what’s important for your well-being is invaluable. In my opinion, a good divorce lawyer with your best interests at heart will always encourage you to seek counseling, or even insist upon it in very tumultuous circumstances.
  2. Get to a lawyer ASAP.  Scheduling a consultation with a lawyer does not mean you’re obligated to hire that lawyer or move forward with a separation or divorce at all. It is simply a good idea to get as much information as you can, as early as possible. A lawyer can give you useful advice about protecting yourself, your children, and your finances before you leave the marriage. While friends who have been divorced are a good source of comfort and camaraderie, there is no substitute for sound legal advice.
  3. If you have had an affair, do not confess to anyone before talking to a lawyer. North Carolina is one of the states where adultery is illegal, and even more problematically, a jilted spouse can actually sue their spouse’s lover. Having an affair can cost you (and your paramour) substantially. It can also have drastic consequences on whether you or your spouse will be awarded alimony. If you have been unfaithful and have a guilty conscience, resist the urge to spill your secrets immediately. First, have a confidential meeting with a lawyer to discuss the possible consequences and how to handle them.
  4. Know what your assets are, and put yourself in a strong position to protect them.  First of all, if your spouse has been the one who’s in charge of finances, taxes, and investments, the best time to educate yourself is while you’re still living together. You and your lawyer are going to need to know about all of the property, assets, and debts that you and your spouse share. Don’t forget about insurance policies and retirement accounts. It is much easier and less expensive to find out by looking through paperwork in your own home, than to try to uncover everything during the discovery process of your divorce. Talk to your lawyer about what financial documents you should look for and gather for your case. Secondly, when you and your spouse do separate, keep possession of the things you want and need, like your car and at least a portion of the cash in savings. If you’re worried your spouse might sell anything valuable, like heirlooms or collectibles, keep them. Finally, make sure your lawyer knows about any real estate that you and your spouse own, and any belongings that do wind up in your spouse’s possession that you believe should not be. Your lawyer can help you take steps to recover your possessions and protect your real estate from being sold without your consent.
  5. Start preparing for your separate life.  Before you actually separate from your spouse, start assembling the basics that you will need to start your new life. Close or freeze joint credit accounts and block access to home equity loans. Close your joint checking and savings accounts and open separate ones. Change the name on utilities if necessary, and change the passwords on accounts that you no longer want your spouse to be able to access. Consider getting a post office box so you can securely receive mail from your lawyer, bank, etc. Again, think strategically and talk with your lawyer about ensuring that your transition will be as simple and well-handled as you can make it.

This list is not exhaustive by any means, but it should give you some things to think about if you’re considering or planning to divorce. Every case is different, so the bottom line with most issues is to talk to your lawyer about the best course of action.

 

Email Snooping

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Email is one of the primary ways that we communicate today.  If you are suspicious of your spouse’s activities, or just thinking about separating and looking for information that might benefit you, checking your mate’s email messages is likely one of the easiest ways to keep tabs on his or her activities.  Not only might you find racy emails between your spouse and a paramour, you might find hotel confirmation emails, paperless credit card statements, or legal and financial information that your spouse was hiding.  Between computers, phones, and tablets, it might be easy to sneak a peek at your spouse’s inbox.  But is it legal?  And if you find something useful, can it help you?  It depends on your situation…

Spyware

One way that you can get into another person’s inbox is to use spyware.  This is software that “spies” on the computer on which it is installed.  There are different types of spyware — some send you copies of emails that go in and out of the target’s mailbox, some track internet usage, and some capture every single keystroke.  Depending on your level of tech-savvy, spyware can be cheap, easy to use, and hard to detect.  It is also, however, illegal.  Various types of spyware may violate ECPA Title I, Title II, or both.  Don’t waste your time on this type of snooping — your attorney won’t even want to hear what you find out if it was obtained illegally.

Authorization

Title II of the ECPA covers unauthorized access to electronic communications that are held in electronic storage.  This means that unauthorized access to emails stored on your spouse’s computer, phone, or tablet is illegal under Title II.  Thus, the question to ask yourself if you’re considering email snooping is: “Am I authorized to access my spouse’s email account?”  This may seem like a simple question, but it can be quite tricky.

Work Computers

Whether your spouse’s work computer is at the office or at home, you should refrain from snooping.  A work computer might contain sensitive client or other work-related information, in both email and other files and programs.  Your spouse’s privacy is not the only concern — other’s people’s privacy may be violated as well.  The potential for illegally or unethically exposing confidential information is too high — just don’t do it.

Easy Passwords

If your spouse isn’t creative or careful in creating passwords, you may very well be able to guess the password or answer the security questions to gain access to email.  Again, the important question is whether you have authorization to look at the email account.  Just because your spouse is predictable or you have a great memory, does not mean that your spouse has given you authorization.  Thus, this type of access would not be permitted under Title II.

Limited Authorization

Imagine that your wife is travelling for work and realizes that she has left an important document on her laptop at home.  She calls to ask you to log in and email the document to her, and she gives you the passwords to do so.  She gave you permission and passwords to use her computer, so you must be authorized to take a peak at her email a week later when she leaves her laptop at home again, right?  No; your authorization was limited in time and purpose to the day she asked for your help and the documents she asked you to find.  If you go searching through the hard drive and emails a week later, you do so without authorization and in violation of Title II.

If, however, your spouse gave you her email password, knows that you have it, and knows that you use it regularly, you may have authorization.  If she changes her password without telling you the new one, then your authorization is likely revoked.  The difference between the situations described above is between a pattern of acknowledged access (probably authorized), and an isolated grant of access followed by unacknowledged reentry to the account (probably unauthorized).  Obviously, the question of authorization can become very complicated under some circumstances, and both parties might have strong arguments that access was or was not authorized.  When in doubt, talk to your lawyer, and ask yourself whether peeking at your spouse’s email feels like spying.  If it feels like you are invading your spouse’s privacy, then you probably are.

Smart Phones and Tablets

Do the rules for checking your spouse’s email change if the access is on a phone or tablet?  You don’t need a password to open the email app, so it’s basically wide open and fair game, right?

This issue also comes down to authorization.  If your spouse gave you the passcode to unlock the phone and knows that you use the phone with some regularity, then tapping to open the email app is probably authorized.  But if you merely guess the passcode and normally do not use the phone, then you are still not authorized to snoop through the email or other programs.  Also, you must be very careful about your spouse’s work emails that may contain confidential information about your spouse’s work or clients.

Technology and tech security are always changing, so there is always gray area about whether access is authorized under the circumstances.  Once more, the best course is to ask yourself whether it feels like you are snooping and invading your spouse’s privacy.  If so, err on the side of caution and stay out of the email!

Spying on Your Spouse

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It shows up in both movies and real life all the time: a stray text message, Facebook chat, or email is seen by the recipient’s husband or wife. A secret is exposed that blows up a marriage or relationship. Whether you have a solid reason to suspect your spouse is cheating or are just feeling suspicious or insecure, it seems that technology has made it easier than ever to check up on your spouse’s activities. With all of the resources available – nanny cams, GPS tracking devices, spyware, voice recorders, etc – it is sometimes difficult for both lawyers and clients to know what kinds of spying are admissible in court, and more importantly, which ones are legal for you to use. If you are determined to look for proof of infidelity or other bad behavior by your spouse, you must be careful about the methods you use – some forms of snooping and eavesdropping could expose you to criminal charges. There are both federal and state laws that limit the ways you can check up on a cheating spouse.

Federal Law

The Electronic Communications Privacy Act (ECPA) of 1986 extended certain wiretapping laws to cover electronic data that is transmitted by computers. It makes it illegal to intercept or obtain unauthorized access to certain types of information. Two subsections of this law are important in the context we’re discussing. Title I applies to the interception of wire, oral, or electronic communication. Title II applies to the unauthorized access to electronic communications that are already held in electronic storage.

You might reasonably think that federal wiretapping statutes are aimed at controlling how the government can investigate terrorism or racketeering. That’s true, but they can also apply to a private citizen trying to catch a cheating spouse. Title I is implicated, for example, if you use a voice recorder to tape a phone call or some form of spyware to intercept your spouse’s emails. Title II is implicated if you “break in” to your spouse’s email or Facebook account.

NC Law

North Carolina has an Electronic Surveillance Act that provides much of the same protection as Title I – it prohibits interception of wire, oral, or electronic communications. We also have laws that are similar to Title II and prevent unauthorized access to another person’s computer, system, program, or network.

State law also provides several privacy-related tort claims that your spouse could possibly bring against you if you access his or her communications without permission. Intrusion upon seclusion is one claim; others could potentially include trespass and intentional or negligent infliction of emotional distress.

In the next few blog posts, I’ll discuss how these laws may apply to specific methods of spying on your spouse. In the meantime, the most important takeaway is to know that certain types of snooping are illegal and some might expose you to lawsuits. Before you do any questionable snooping, research what the law says and talk to your lawyer.