Can I Open My Spouse’s Mail if We Are Separated?

The oldest and strongest emotion of mankind is fear, and the oldest and strongest kind of fear is fear of the unknown.  H.P. Lovecroft

Contemplating the major life-change of separation and divorce with all of its uncertainty is universally scary. And many people facing this fear and insecurity react by trying to get the upper hand, perhaps without fully examining the consequences and costs of their actions.

Victoria was such a client. She became suspicious of her husband’s behavior – never home, more concerned about his appearance, more protective of his iPhone and laptop. So she began looking for ways to gather information about what was going on with him.  She began going through her husband’s pockets and briefcase after he was asleep at night. She also began opening his mail and trying to access the contents of his phone and computer.

Are there any problems with what Victoria is doing? The answer to this question is “It depends” and requires several levels of analysis.

1. Might Victoria’s actions be illegal?

Possibly, depending on the type of communication involved and the specific details of her actions.  Opening U.S. mail addressed to someone else without authority to do so is a serious federal crime.  Accessing technology-based communications such as email and texts may violate both federal and state statutes, depending on how technical terms such as “interception,” “transmission,” and “storage” are applicable in the particular situation.  An additional consideration:  even if the action does not lead to a criminal prosecution, it might create exposure to a civil suit by your spouse.

2. Would any evidence Victoria is able to obtain be “admissible” if her divorce case goes to trial?

This is also a very complicated question, but, most likely, any information that is obtained illegally would not be admissible in a court of law.  Furthermore, this type of behavior may make a negative impression on the judge, and may cast a pall over a party’s entire case.

3. What “kind” of a divorce does Victoria want to have, if it comes to divorce?

This is perhaps the most complex analysis of all.  Victoria’s actions are primarily driven by fear at this early stage, but getting separated and then divorced is a process that takes many months and perhaps even years.  A client’s feelings and priorities typically evolve over time.  If Victoria is able to focus on the big picture and attempt to imagine what will be important to her towards the end of the divorce process, what will her goals and priorities be at that time?  What impact might her actions have on her ability to co-parent successfully with her husband, or to make trust and respect a cornerstone of their post-divorce way of relating to each other?  What regrets might she have about succumbing to fear and insecurity back in the early days?

So, if you’re facing the possibility of separation and divorce:

• Be aware of the complexity of the issues with regard to gathering information;
• Listen to your “internal voice,” and be clear that if you have to ask the question, you probably shouldn’t do it;
• Get legal advice early on in the process before you take actions you may later regret.