Intercepting E-mail Communication

A Brooklyn judge ruled last week that a woman seeking to prove that her husband had schemed to hide his income could introduce e-mails from his computer as evidence, without violating that state’s law against intercepting an e-mail communication. That episode illustrates several legal and practical concepts in family law.

First, every divorce is predicated on open and honest communication and full disclosure of all relevant financial information, no matter what. Any divorce that does not involve full disclosure, either by mistake or by fraud, is subject to being reopened and reevaluated in light of the new information. For that reason, the woman was well within her rights to do what she did to preserve her right to full disclosure. In so doing, she also probably saved herself time and expense by avoiding the need for a second hearing at a later date to reexamine the things that would have been withheld from the previous hearing.

However, in most of my clients’ divorce agreements, I encourage them to insert a clause stating that they will not do exactly what that woman did. The judge drew a fine line in the Brooklyn case because he differentiated between her reading his existing e-mails on his computer, versus her intercepting his emails before he received them. For that reason, and on those narrow facts alone, her conduct was permissible. However, it’s generally inappropriate to monitor your ex-spouse’s correspondence, regardless of the supposedly noble purpose you have for doing so.