It’s not unusual for spouses to discover incriminating information about each other through an electronic device. Our phones and computers contain a wide variety of personal information which is often easily accessible to our spouses. However, spouses do have a right to privacy. That means you cannot search your spouse’s computer for evidence in a divorce case absent a few exceptions.
When Can You Search Your Spouse’s Computer?
If there is a shared household computer located in a common area of the home that utilizes one account that everyone uses, you can search that computer. There is no expectation of privacy if everyone is using a computer with one shared account and no effort is made to keep certain information on the computer private and confidential.
When Are You Prohibited from Searching Your Spouse’s Computer?
You may not be able to search a computer even if it is generally used by the household if your spouse took steps to protect his or her information. For example, if your spouse created a password-protected document or online account, you would not be able to access them even if you know the passwords. However, there is an exception to this if your spouse left the information up on the screen for anyone to see. Under those circumstances, you can view what is on the screen but you cannot scroll, search or open other messages, applications or documents.
You are also prohibited from searching your spouse’s personal computer or other electronic devices except if he or she leaves something up on the screen that you could see passing by.
As of this date, there are no published cases in New York stating whether you could search your spouse’s personal computer if you had used it previously and had information on it under his or her account.
Can You Use Evidence from Your Spouse’s Computer in Your Divorce?
Assuming you lawfully obtained evidence of wrongdoing by your spouse, it may help you in various aspects of your case but not in terms of infidelity. In New York, infidelity is irrelevant when determining custody, support and property distribution. Most divorces are granted under the no-fault statute so you don’t have to prove infidelity or any other ground to obtain a judgment. Even if you do prove fault, absent very narrow circumstances, you won’t receive a bigger financial settlement as a result of infidelity or financial misappropriation, although certain evidence which goes to establishing neglect or abuse may affect custody outcomes.
If you find proof that your spouse is hiding income or assets, it should be shared with your attorney so a forensic accountant can be hired to further investigate your findings in a manner that would be admissible in court.
If you are considering divorce, contact us to discuss how we can help you achieve the best result in your matter.
