Is it ok to access your spouse’s e-mail account? In the world of smartphones, tablets, and other devices, e-mail is always at our fingertips, and in many families it is considered perfectly acceptable for spouses to have joint access to an e-mail account, or to know each other’s e-mail passwords. However, if the relationship later goes sour, one spouse may think that he or she can get a strategic advantage by accessing the other person’s e-mail.
According to a recent case, decided by the California Court of Appeal, such conduct is not only inappropriate, it may even constitute grounds for a Domestic Violence Restraining Order.
In the case of Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, Mr. and Mrs. Nadkarni decided to set up an e-mail account shortly after their separation in 2001 or 2002, so that Mrs. Nadkarni could use the account to communicate with her ex-husband about their pending divorce and the custody of their two children. According to Mr. Nadkarni he was the one who created the account and initially selected the password. According to his ex-wife, she set up the account herself, and never authorized Mr. Nadkarni to use it.
In 2007, as the parties’ custody battle continued, Mr. Nadkarni filed a motion with the Court, to which he attached several e-mails between Mrs. Nadkarni and third parties, including Mrs. Nadkarni’s attorney and the parties’ children. Mr. Nadkarni claimed that he accessed his ex-wife’s e-mail account because he was not able to reach her otherwise, and felt that his “kids’ safety was at stake.” He further stated in a court declaration that he “had procured more evidence from the above mentioned email accounts, which could be considered inflammatory and sensitive to certain others.”
When Mrs. Nadkarni requested a restraining order against her former husband based on this conduct, the trial court granted an emergency temporary order, but later denied her request for a permanent order, siding with Mr. Nadkarni, who argued that the abuse Mrs. Nadkarni has alleged is not sufficient for issuance of a restraining order. Mrs. Nadkarni appealed the decision.
In California, domestic violence restraining orders are governed by the Domestic Violence Protection Act (“DVPA”). For the purposes of the DVPA, “abuse” is defined as intentional or reckless bodily injury, sexual assault, placing a person in reasonable apprehension of serious imminent bodily harm to that person or another, or engaging in any behavior that has been or could be enjoined pursuant to Section 6320 of the California Family Code. This behavior includes “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, annoying telephone calls, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, disturbing the peace of the other party.”
In the Nadkarni case, the Court of Appeal considered the plain meaning of the phrase “disturbing the peace”, and held that this may include “a former husband's alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential e-mails.”
It has been our experience that family law litigants often resort to actions that they would not find acceptable under different circumstances, such as accessing other people’s e-mail. However, our advice is: resist the urge. No matter what “smoking gun” you think you will find, the potential backlash is just not worth the risk. And, to make sure that your ex-spouse does not succumb to the urge of accessing your e-mail, if you are going through a separation or divorce, please change your password.
Marina Ayzenstein is an attorney with Richard Ross Associates, a Family Law firm, serving clients in both Ventura and Los Angeles Counties. Marina is a member of the Los Angeles County Bar Association Family Law Section, Ventura County Bar Association, and the Ventura County Inns of Court.
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