Cyber-snoops often cross legal line in divorce wars

— -- When a Greeneville, Tenn., man saw that e-mails he sent were different from what the intended recipient received, he immediately suspected his soon-to-be ex-wife.

His suspicions turned out to be true: She had installed snooping software on his computer, intercepted his e-mails and altered them, according to federal court records.

His case illustrates a growing aspect of divorce in the digital age. As more and more information is transmitted through e-mail, social media and smartphones, husbands and wives are increasingly snooping on their counterparts' communications and whereabouts — sometimes illegally. It's an evolving aspect of divorce cases in which technology quickly outpaces the law's ability to keep up. The end result is a gray area with little settled law and a lot of lingering questions.

"It has resulted in a lot of evidence, not only of romantic involvement of one spouse with someone else, but it can also result in proof of undisclosed assets or responsibilities, financial misconduct," said Davidson County Circuit Judge Phillip E. Smith. "But what is the cost of obtaining this information? How does it balance against the need to prove your case? We're going to struggle with that in the future."

As that information becomes more widely used in divorce proceedings, judges are often required to sort out subtle nuances. For example, how much of a shared computer can litigants access? What if one party knew another's e-mail password before divorce proceedings began? And what are the repercussions for breaking those rules?

Most states have established wiretapping laws, originally created to govern the recording of phone conversations. Such cases are rare but could lead to severe penalties.

Far stickier are e-mail and social media communications. So sticky, in fact, that attorneys have had to change the way they advise clients in divorce cases.

"I have a letter I send to every client after their divorce is over saying change all your passwords," said Helen Rogers, a Nashville attorney. "If you don't change your passwords, you left them the key to the house."

Rogers said that if a husband knows a wife's password before the divorce proceedings, he may legally be able to read and save her e-mails during the proceedings. But other methods to intercept e-mails, as in the Greeneville case, in which snooping software was installed, are more troublesome.

"It includes communications between the spouse and the lawyer. They do that intentionally to see what their spouse and their lawyer are up to," said David Raybin, a Nashville attorney who advises divorce attorneys on wiretapping and privacy laws. "When that happens, one it's a criminal offense, and number two, it can subject you to civil liability."

But even if criminal charges aren't filed, the information obtained from snooping software could ultimately prove useless.

"I've had some cases where the attorneys have objected to the entry of certain documents because they were obtained illegally," said Circuit Judge Royce Taylor, who handles divorce cases in Rutherford and Cannon counties. "We've excluded the evidence."

Social media sites such as Facebook and Twitter are murkier, but attorneys advise clients to avoid any discussion of matters that could become relevant in a divorce proceeding.