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Don't Point That Smoking Gun at Yourself: Hacking Your Spouse's Email is a Bad Idea

We've all seen too many courtroom dramas where just in the nick of time that critical piece of evidence is dramatically thrust into the hands of the defendant or waived around in front of the jury. Even attorneys sometimes fantasize about having those moments but litigation is normally pretty mundane. Parties and their attorneys would love to have that "smoking gun" evidence to hammer the other side with, but getting it may cost more than its worth.

In criminal and civil cases against businesses there are often court orders put in place barring the destruction of relevant emails and that they be provided to the other side. A similar order can be put in place in a divorce case. It may be a safer way to go than secretly and possibly illegally hacking your spouse's email in hopes of finding that golden nugget of evidence.

Paula Epstein thought her husband was cheating on her. Without her husband's knowledge she set his email to automatically forward copies to her. The good news was she found evidence to support her hunch. The bad news is she violated federal law while doing so, making herself a defendant in a lawsuit by her husband.

Epstein's actions were a violation of the federal Wiretapping and Electronic Surveillance Act, the U.S. Court of Appeals for the Seventh Circuit decided in December, according to the ABA Journal. After Paula accused her husband, Barry Jay Epstein, of infidelity his attorney asked for proof. Copies of the "smoking gun" emails involving several women were provided. Barry didn't know she had access to them.

The two filed for divorce in 2011 and Barry filed the civil claim against her (and her attorney) based on the federal wiretapping law in 2014. The case was dismissed at the trial court. The appeals court agreed the case against the attorney should be dismissed, but ruled the case against Paula should proceed. The court stated the allegations against her fall within the language of the law, though this was a situation Congress probably didn't consider when it was passed.

Don't hack your spouse's email, as tempting as that may sound. It may do you more harm than good. However you should take steps to protect your own privacy because it may be your spouse who's hacking your email. Spyware could also be installed on the computer you use at home and your smartphone. He or she may be trying to dig up dirt on you, read your correspondence with your lawyer or want to know your whereabouts at all time. This is especially dangerous if your spouse is violent or abusive.

If you have questions about divorce and how the legal process works, contact our office so we can talk about your situation, how the law may apply and what can be done to protect your rights and interests.

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