It’s not unusual for spouses to discover incriminating information about each other through electronic devices. Our phones and computers contain a wide variety of personal information which is often easily accessible to our spouses. However, spouses have a right to privacy, which means you cannot search your spouse’s computer or other devices for evidence in a divorce case, with a few exceptions. Below we have compiled some information to help you better understand these circumstances.

When Can You Search Your Spouse’s Electronic Devices?

Suppose a shared household computer is in a common area of the home that utilizes one account that everyone uses. In that case, you can search that computer or other device for evidence. There is no expectation of privacy if everyone uses a computer, and no effort is made to keep certain information on the computer private and confidential.

When Are You Prohibited from Searching Your Spouse’s Electronic Devices?

You can’t search a device even if the household generally uses it if your spouse took steps to protect their 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 if your spouse left the information on the screen for anyone to see. Under those circumstances, you can view what is on the screen but 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 they leave something up on the screen that you can see.

Can You Use Evidence from Your Spouse’s Electronic Device 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. New York and New Jersey are no-fault divorce states, so infidelity is irrelevant when determining custody, support, and property distribution. Even if you prove fault, absent very narrow circumstances, you won’t receive a more significant financial settlement due to infidelity or financial misappropriation. However, 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 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 possible outcome for everyone involved.