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May 5, 2022

Individuals have a right to privacy during divorce just as they do during marriage.  It is not uncommon for spouses to pry into each other’s personal communications, records and things to uncover hidden information especially as the level of mistrust escalates during divorce.  So, when does this kind of “snooping” cross the line?  Here are some examples we divorce attorneys commonly see.

Opening mail addressed to the other spouse.  This is a common situation when one spouse moves out of the house during divorce while his/her mail continues to be delivered there.  It can be tempting to open mail addressed to the other spouse but caution—it is a federal offense for any person to open postal mail addressed to another person without permission of the individual addressee.  Not only is it illegal carrying heavy penalties but the information obtained will be subject to evidentiary challenge and of no use later in a hearing or trial.

Accessing e-mail.  Reading your spouse’s e-mail without permission is another common temptation.  It is generally okay if you routinely share a computer with open access, however, if the e-mail account is password protected and access is obtained without the account owner’s knowledge or consent, whatever material obtained will violate the law and will be subject to evidentiary preclusion, an injunction or protective order.

Accessing text messages.  Similar to e-mail, text messages will also be subject to evidentiary challenges on the same grounds.  Incoming text messages can often be viewed on a cell phone screen when not in use, so there is no rule that would protect the privacy of a message that pops up on screen.  However, if the cell phone text messages are viewed as a result of accessing a password protected device without permission, there could be legal ramifications and they will be challenged as ill-gotten information and precluded as evidence.

Recording conversation.   In Connecticut it is illegal to record conversations without the consent of both parties to a telephone conversation.  CGS § 52-570d provides, “No person shall use any instrument, device or equipment to record an oral private telephonic communication unless the use of such instrument, device or equipment (1) is preceded by consent of all parties to the communication and such prior consent either is obtained in writing or is part of, and obtained at the start of, the recording.”  If the conversation is in-person, there must be consent by at least one person who is a party to the conversation.  CGS § 53a-189 prohibits the unlawful mechanical overhearing of a conversation.  “Mechanical overhearing of a conversation” is defined as “the intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment.”  Thus, for example, a spouse may not secretly plant a recording device in the other spouse’s car to record that spouse’s conversations with a third party.  The recorded conversation may be inadmissible in court and ruled unusable during the discovery process on the grounds that it would be unjust.

Locked containers.  “Marriage does not destroy one’s constitutional right to personal autonomy but, at the same time, each spouse does relinquish some of his or her rights to seclusion.”  In re Matter of Dubreuil, 629 So.2d 819 (Fla 1993).   Cases addressing spousal privacy in the home emphasize whether there is a manifestation of an expectation of privacy.  For example, when a wife found love letters and photographs of another woman in the home office filing cabinet, the court ruled the items admissible on the grounds that the wife had complete access to the storage room files and had a valid reason to be in the files.  “Having a legitimate reason for being in the files, plaintiff had a right to seize evidence she believed indicated her husband was being unfaithful.”  Del Presto v. Del Presto, 235 A.2d 240 (N.J. Super. 1967).  The most obvious manifestation of an expectation of privacy is a physical locking device so if you are considering breaking locks to access anything, consider that there may be consequences.

It is important to understand the boundaries of spousal privacy rights not only to protect your own privacy but to avoid possible exposure.  When in doubt, change your e-mail and phone access passwords regularly.  The best way to protect your privacy is to assume that there is little to no expectation of privacy during a divorce.

The attorneys at Broder Orland Murray & DeMattie LLC, with offices in Westport and Greenwich, are very experienced with the evidentiary issues that often arise in the context of the spousal discovery process and are adept at advising clients on how best to obtain information and conversely protect their individual privacy interests.


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