Hacking Your Spouse’s Email During a Divorce

Think hacking into your spouse’s email might give you an edge in your divorce proceedings? That is exactly what Barry Epstein accused Paula Epstein of doing when it was discovered that she had retrieved emails from his account (the parties were in dispute as to whether Barry had left his account open or whether Paula gained access through hacking). Instead of gaining leverage, Paula got slapped with a federal lawsuit for violations of the U.S. Electronic Communications Privacy Act and the Stored Communications Act, which are laws that aim to protect against wiretapping and eavesdropping.


Divorce actions are governed by state law and are tried by state courts. However, a spouse may choose to sue another spouse for violations of federal law in a separate lawsuit during or after a divorce proceeding and, according to his Third Amended Complaint, that is exactly what Barry Epstein did within three days of his learning of the alleged actions of his wife. One of the laws that Barry cited in his federal lawsuit was the Electronic Communications Privacy Act, which prohibits the intentional interception, disclosure, use, or endeavoring to use the contents of any electronic communications between two parties without the consent of one or both parties to that communication. The second law which Barry cited to was the Stored Electronic Communications Act, which prohibits the intentional unauthorized accessing of a facility through which an electronic communication service is provided whereby an individual obtains access to an electronic communication which is in electronic storage in such system.


In Paula’s response to Barry’s Third Amended Complaint, she alleged 12 affirmative defenses.  One of her defenses was the adultery uncovered in Barry’s email was illegal and/or violated public policy and as such, his lawsuit should be barred because he sought protection for communications in furtherance of that activity.


The case ultimately settled after two days of trial before a jury, so we are left without the benefit of a court’s ruling on whether Paula’s actions (if proven at trial) violated federal laws. However, the lesson is clear – people should never access their spouse’s email account without express consent by that spouse. Even if information uncovered could give the snooping spouse any sort of advantage in the litigation, the ultimate result could include the payment of damages (including statutory, compensatory, and punitive) to the other spouse that far outweigh any financial gain. Additionally, the court may further penalize the snooping spouse by not allowing evidence acquired through hacking to be admissible.


When there is a suspicion that emails or other social media accounts of a spouse could contain information relevant to a divorce case, it is better to obtain that evidence through the proper channels (i.e. the formal discovery process). Additionally, it is always advisable to consult with an experienced attorney when it comes to the matter of access to information contained within a spouse’s online accounts.


If you are going through a divorce, click here for important steps on how to handle your social media accounts.


*It should be remembered that these are general guidelines and do not constitute legal advice.  The specifics of obtaining evidence during a divorce will ultimately depend on the facts and circumstances of each case.