Can Email Messages Be Used in Divorce?
By Beverly Bird
It's not unheard of for spouses to say things they don't really mean when divorce is looming and nerves are stretched to the snapping point. You might want to confide in a friend to let some steam off – or you might have a new friend you don't want your spouse to know about just yet. If you commit any of these facts to an email, it's possible that a copy of the transmission might be waiting for you in divorce court.
What Emails Establish
Divorce encompasses issues of custody, property settlement and support. In some states, fault may be contested as well. Your email transmissions can affect all these things. They can speak to your character or habits in a custody dispute or discuss your ability to find gainful employment. They can reveal an extramarital affair or other marital misconduct. If emails are pertinent to any aspect of your divorce, the judge will usually consider them, provided they're admissible as evidence in the first place.
Because divorce courts are generally willing to accept emails as evidence, the question of admissibility becomes how your spouse managed to access them. If you share a computer and haven't password-protected your email account, the transmissions are usually fair game. There's a catch in some states, however – if they're emails you wrote rather than received, your spouse must prove that it was you who actually wrote them. No one else – including your spouse – sat at the keyboard and typed the message, pretending to be you.
If your account is password-protected, but you voluntarily gave your spouse the password at one point in time, the emails are generally admissible unless you can establish that you only gave her one-time access in a specific situation. If you accidentally copy your spouse on an email or send one directly to her, it's hers now and she can use it in court against you. In some states, she can ask for a court order allowing an expert to copy your hard drive. Even if you've deleted incriminating messages – or think you have – it's sometimes possible for a professional to retrieve them.
Inadmissible emails are those your spouse accessed by unauthorized means, such as hacking into your computer or email account. She doesn't necessarily have to be a computer whiz to pull this off. If your password is your initials plus the numbers of your birth date, she'll probably be able to figure it out. If she guesses correctly and gains access to your email account, you can challenge admission of the transmissions at trial. If she is a computer whiz and tries to copy your hard drive herself, any evidence she recovers would generally not be admissible in court.
What You Can Do
Divorce is often war, so you have every right to circle your wagons. Change your passwords on all critical accounts and do so frequently. The more convoluted you make them, the better. Each time you send an email to your spouse or anyone else, read it over first and consider how your words might appear to the court if the message were admitted as evidence. If it casts you in an unflattering light or reveals something you don't want the world to know, don't send it and don't save it – delete it. You'll also want to avoid drinking and clicking. If you've consumed alcohol, don't send any emails until you've read them over in the morning with a clear, cold eye. If your spouse does somehow gain unauthorized access to your emails, speak with a lawyer. Not only should you be able to bar them as inadmissible evidence in court, you might potentially be able to press criminal charges against her. Hacking into electronic messages is illegal under both state and federal laws.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.