For anyone involved in a divorce there are always pitfalls to be avoided, no matter where you are in the process. Some of the pitfalls are obvious, others less so. Today we'll discuss the first three in a set of seven areas of technology to approach with caution. Apologies for the dramatic title.
1. Your Email Is Not Secure
Virtually everyone has an email address, either at home or at work, so nearly everyone will be impacted by many of the problems that can come from that. If you are divorcing and you have an email account, stop reading this post and go set up a new account. Then come back and finish reading. Create a new Gmail or Outlook account that you can use exclusively for personal communications such as those about your divorce, with your lawyer, questions for the accountant, etc. If you have an account you can't get rid of, such as a work email or an AOL email you've had for 15 years, change the password right away.
Why? Because your spouse is reading your email. You can count on it! When's the last time you changed your password? Is it still "12345?" Or even worse, is it "password?" I'm not judging. But ask yourself this question: Would someone who knows me be able to easily guess my password? Birthday, pet name, street address, all of those things are common information. And you probably use the same password for all your accounts, so with a little tinkering it's pretty easy to figure out. Change it to a secure password with both lowercase and uppercase letters, a number and a symbol. A future article touches on other tech available to keep passwords secure, but for today, please, just change it! While we're on the subject, think of all the devices you're signed into your email on right now. Phone, tablet, home computer, work computer. How easy is it to access those? Make a new habit to always log off, then change those passwords.
Don't forget that you can bet that the person you're seeking to separate from is signing on and reading your emails, monitoring you, maybe even right now! Their reasons for doing so don't matter. What DOES matter is that your lawyer cannot safely communicate with you. Things you say to your friends and family that you thought were in confidence are being intercepted. This can lead to delays in litigation, gamesmanship and worse, all because your spouse saw an email where you were venting your frustrations (in colorful fashion) about your spouse's – insert complaint here – to your mother. So first thing? Get a new account and change passwords on all existing accounts.
2. Reading Your Spouse's Email
No matter how tempting it is, don't read your spouse's email! There are safer and more legitimate ways to get the information you may be looking for. Absolutely never use email interception.
There are several different ways people access their spouse's email. Some folks passively read email. Knowing your spouse's password makes this easier (see the first sin, above!). If you can sign in, you can go on whenever you like and read what they're saying to other people. Maybe you just happen to be walking by your spouse's open laptop and see an email chain. If you sit down and begin to scroll through and read their email communications you could get in trouble. If you're convinced there is something you will need that is in your spouse's computer, tell your attorney. There are other ways to get that piece of information that don't blow the whole case. Just because you aren't using sneaky "spy" software doesn't mean it's legal or ethical.
However, some ways of accessing your spouse's email are flat out illegal, we'll call those "active searches." An active search of email can involve loading 'keylogger' or other email interception software onto the computer that your spouse uses to read email. That software enables you to read from your computer what they write from their email account, often in real time, without their knowledge. (If you think someone has installed keystroke logging software on your own computer, most of them are pretty easy to remove!) Actively seeking out your spouse's email communications is an illegal violation of certain wiretapping statutes, including Massachusetts'. Even if you don't get prosecuted, whatever you discover is inadmissible. Don't ruin your credibility with the court.
3. Recording Telephone Calls
While the telephone and the tape recorder may seem arcane, they are technology and they do get people in trouble. In Massachusetts it is against the law to record a telephone call without the knowledge of both parties to the call. We are a so-called "two party state." This is why Sin No. 2 is a problem as well. This rule applies not only calls, but for any kind of conversation. If you think your spouse is doing something that is proving some point you want to make (screaming like a maniac in the driveway, staggering around with slurred words, whatever it is!) do not hit record on your smart phone (which is technology!) without first letting the person know you are taping them, and then – this is really important – say it again as soon as you begin to record. Trust me on this one, because your spouse will deny they ever knew if you do not actually record your announcement-the first words on that recording had better be you saying you are recording the call. Please!
Video, without audio, is not illegal in Massachusetts unless you are somehow invading the person's privacy such as taping them in the shower or changing. Even if video is not illegal it could be construed as kind of creepy and the judge may find it concerning that you are videotaping your spouse.
Ultimately, if your spouse is doing something you want to record (screaming at you for example), turn on the video with audio on your phone, announce that you are recording so your announcement is the first thing on the tape, and then record with abandon! If your screaming spouse does not want to be recorded they can leave. The courts have stated that you are not violating the statute if you continue recording after they say to stop. This is not about consent, it is about knowledge and violation of privacy.
I understand these rules are hard to follow sometimes. Maybe you have already committed a sin or two, and that's okay. No one is perfect. Least of all me! But, these rules can help and so I hope you use them and share them with your friends. Look for The 7 Deadly (Tech) Sins of Divorce – Part 2, coming next week!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.