Privacy and Divorce

In any contentious divorce proceeding it may be tempting to use creative methods to discover information about your ex-partner.  For example, you might want to peek at your former spouse’s e-mail or Facebook messages.  Some of these informal methods of information gathering may be permissible while others have both federal and state criminal implications.  Therefore it is crucial to consult with an attorney to discuss your right to information balanced against your spouse’s right to privacy before engaging in any investigation you fear may be illegal.

Federal wiretapping and eavesdropping laws contain strong prohibitions against recording private telephonic conversations of others or intercepting electronic communications.  However these laws do not contain clear provisions for all of the social media technology that exists today. Social media can be a rich source of information for any family law cases, especially a case involving custody and visitation disputes. If your spouse posts a racy photo or makes comments about his or her parenting mistakes online, providing that documentation to the court may be very helpful.

Many San Diego family law attorneys agree that simply viewing your spouse’s social media site is not a violation of Federal or state laws.  If you are a “friend” of your spouse (or your spouse’s page is not protected for privacy purposes and is public) on Facebook and have access to view his or her “page” you may be able to present print outs from public postings to the court.  However, many divorce attorneys agree that creating a fake profile page and obtaining access to your spouse’s Facebook account through false pretenses is not permissible.  In sum, you must have knowing consent from your spouse in order to use information discovered on his or her Facebook page in a divorce proceeding.

If you and your spouse have exchanged passwords to otherwise private social media websites, you may be permitted to introduce evidence discovered by virtue of that exchange.  Current technology provides other alternatives to obtaining passwords and/or access to protected sites.  For instance, key-stroke recording software can be installed to obtain private information and passwords to e-mail accounts or other online sites.  However, installing this software and obtaining information this way may subject you to both criminal and civil penalties.

Because there are not hard and fast rules for all cases or potential violations, it is important to consult your attorney before engaging in any questionable conduct.  Further, it is best to err on the side of caution when in doubt.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 for more information about the consultation process. Ms. Bickford serves clients located in Del Mar, Carmel Valley, and other parts of San Diego county.