Privacy Protection During Divorce Proceedings

Summary

Divorcing spouses should take proactive steps to secure personal data, such as changing passwords, encrypting devices, and avoiding sharing sensitive information that could be used in court. Information previously shared with a spouse, such as financial records or private communications, may be difficult to protect from legal discovery, so it's best to consult an attorney about specific privacy concerns and remedies.

Privacy protection during divorce proceedings: Your FAQ guide

How can I keep personal information private during a divorce?

When going through a divorce, it's critical to safeguard your sensitive personal information to the greatest extent possible. Any private data, communications, or documents you share could potentially be used against you in court proceedings. Here are some key steps to protect your privacy:

• Secure your devices and accounts. Change all passwords and PINs, especially for email, social media, banking, and other sensitive accounts. Use strong, unique passwords and two-factor authentication. Consider using a password manager. • Enable encryption on your computer, phone, and storage devices. Use full-disk encryption like BitLocker (Windows) or FileVault (Mac) on laptops and desktops. Encrypt phones and tablets as well. • Be very cautious about what information you share electronically. Emails, texts, and social media posts could be subpoenaed and used as evidence. Avoid sending anything you wouldn't want exposed in court. • Keep sensitive documents secure. Use a safe or safe deposit box for important papers, financial records, prenuptial agreements, etc. Avoid keeping private info in shared filing cabinets or areas your spouse can access. • Secure your browsing. Use private browsing mode and consider a VPN, especially on shared computers. Be aware your browsing history could be monitored or recovered.

Taking proactive steps to lock down your devices, encrypt sensitive data, and be extremely judicious about sharing personal information can go a long way in maintaining privacy during a divorce. Consult with your attorney about other specific measures for your situation.

What happens to information shared with my spouse that I want to keep private?

In general, any information or records you've willingly shared with your spouse in the past may be difficult to keep private or excluded from divorce proceedings. A few key points to keep in mind:

• Confidential information you've shared, such as health records, could likely be referenced in court, especially if relevant to child custody, financial settlements, etc. Declaring something confidential after the fact is very difficult. • Emails, texts, photos, and other electronic communications with your spouse are generally admissible in court, even if you shared them with the expectation of privacy. Think carefully before sharing sensitive info. • Financial records are very likely to be relevant in divorce proceedings for determining alimony, asset division, etc. Records you've shared with your spouse are almost certainly discoverable. • If you have a prenuptial or postnuptial agreement that specifies certain information as private/confidential, that may help protect it, but it's not a guarantee. The court could still order it to be shared in some cases.

The key takeaway is that information previously shared with a spouse is very difficult to make private after the fact. The best approach is to proactively avoid sharing information you want to keep confidential. If you have specific concerns, review them with your attorney to understand your options and risks.

Are my spouse and I allowed to record each other?

Laws about recording conversations and communications vary by state and circumstance. Some key considerations for divorcing spouses:

• Wiretapping laws in many states require "two-party consent," meaning both parties must agree to audio recording of conversations. Video recording has some different standards. Research your state's specific laws. • Even if legal, surreptitious recording of a spouse is frowned upon by judges in divorce/family courts and could work against you. Think carefully before engaging in any kind of recording. • If abuse or harassment is a factor, recording may help document it for court proceedings. Consult your attorney about how to do this properly and admissibly. • Even in "one-party" consent states, it's risky to record when a reasonable expectation of privacy exists, such as in bedrooms or bathrooms. Recordings in public settings are generally more acceptable.

While surreptitious recordings may be tempting to gain leverage in a divorce, it's critical to understand your state's laws and the potential risks. Judges generally disfavor this tactic when no abuse or crime is involved. If you believe you need to record for a valid reason, consult your lawyer first to ensure you do it properly.

Is my spouse allowed to access my private computer or phone?

Unauthorized access to your personal devices is a complex legal issue that depends on the specific situation and state laws. But here are some general principles:

• In most cases, your spouse should not access your personal devices or accounts without your clear permission. Doing so may violate privacy laws or count as hacking under the Computer Fraud and Abuse Act. • If you can show your device is personal, not shared, and protected by a password, unauthorized spousal access is more likely to be illegal. But these cases get complex quickly. • Shared devices or accounts you both routinely access are more of a gray area. Your spouse may have a stronger claim to access these legally. • If your spouse guesses your password or you negligently leave your device unsecured, you'll have a harder time proving unauthorized access. Always lock your devices and use strong passwords your spouse can't guess.

If you suspect your spouse has improperly accessed your devices or accounts, document the incidents and inform your attorney immediately. They can advise you on how to gather proper evidence and protect your privacy rights without violating laws yourself.

Protect yourself by always keeping your devices locked with strong passwords, using encryption, and maintaining separate accounts that your spouse doesn't know about. And avoid the urge to "hack back" or access your spouse's private data, as this could make your case worse.

How can I stop my spouse from sharing photos/videos of me?

If your spouse is sharing private photos or videos of you, online or elsewhere, without your consent, you have several potential legal remedies. Consider the following:

• Many states now have "revenge porn" laws that criminalize nonconsensual sharing of nude or sexual images/videos. If the content is explicit, your spouse could face criminal charges. • Even if the images don't qualify as "revenge porn," the sharing may violate privacy laws or constitute harassment or infliction of emotional distress. You may have civil remedies. • If the photos/videos were taken in a private setting where you had a reasonable expectation of privacy, the original creation of the content may have been illegal, not just the sharing. • If your spouse is sharing the content online, federal copyright law may help in getting it removed, since you hold copyright over photos/videos of you. You can send DMCA takedown notices to websites. • A court order or restraining order could potentially bar your spouse from continuing to share the private content.

Document all instances of your spouse improperly sharing private content and immediately inform your attorney. They can help you explore your full legal options. Be aware that "leaking" embarrassing content about a spouse is an increasingly common tactic in contentious divorces. It's critical to take this seriously and get legal help quickly to prevent the situation from escalating.

Do I have to share my social media information in a divorce case?

Social media is playing an ever-larger role in divorce cases. Information from social platforms is increasingly used as evidence in custody battles, asset disputes, and allegations of infidelity or misconduct. Some key things to know:

• In general, social media content is admissible in family court. Tweets, Facebook posts, Instagram photos, etc can all potentially be used as evidence. • Deleting or altering old posts after divorce proceedings start could be considered destruction of evidence. Avoid the urge to clean up your history. • It's not just your own posts. Content shared or tagged by friends or family could also be relevant. Be mindful of your full social footprint. • Assume everything you post could be seen by a judge. Many experts advise pausing or minimizing social media activity during divorce proceedings. • Your spouse or their attorney may request access to your social media history as part of discovery. If the judge considers it relevant, you may have to share account data or even login credentials.

While you aren't required to preemptively share private social media content, it's best to assume anything you've posted could eventually come out in court. The single best approach is to lock down your profiles and stop posting any personal content during the divorce process. Don't post anything about your spouse, the legal proceedings, or your personal life that you wouldn't want used in court.

What privacy rights do I have if I move out of the marital home?

Separating before a divorce can raise tricky privacy issues. If you move out of the marital home, be sure to consider the following to protect your privacy:

• Before leaving, secure all your sensitive documents, records, and personal effects you don't want your spouse accessing. Move them to a private, secure location like a safe deposit box. • Get a PO box or private mailbox and have your mail forwarded there. This prevents your spouse from intercepting your sensitive mail or trying to use your new address for harassment. • Close joint bank accounts and credit cards so your spouse can't trace your transactions or spending. Establish accounts solely in your name. • Change passwords and enable two-factor authentication on all your accounts, even the ones your spouse doesn't know about. Consider using false answers for security questions in case they try to reset your passwords. • Be very careful about anyone you allow to know your new address. A private investigator may try to find you through friends and family. Use a generic "I'm staying with a friend" explanation. • On social media, ensure your profiles are completely locked down. Don't share any location info or photos that could reveal where you're living.

Moving to a new home can help you gain some privacy from a toxic spouse during separation. But it's critical to be proactive and thorough in locking down your location data and sensitive records. Assume your spouse may use unethical tactics to find you or access your personal information. The more security measures you put in place before moving, the better protected you'll be.

Can I keep my divorce records private?

Divorce records, like most court proceedings, are considered public records in most states. However, there are some limited methods to increase the privacy of your divorce case:

• Sealing records: In some cases, you can request the court "seal" your divorce records, making them unavailable to the public. This is typically only allowed for sensitive issues like domestic violence, child abuse, or mental health problems. The standard to seal records is quite high. • Redacting information: Even if records aren't fully sealed, you may be able to have certain personal information like social security numbers, financial account details, or children's names redacted before documents are filed publicly. • Negotiating in private: Contentious divorces generate more public documents. If you and your spouse can negotiate and settle issues privately via collaborative divorce or mediation, less sensitive information may make it into public records. • Avoiding false allegations: While it may be tempting to sling mud at your spouse in filings, avoid making allegations you can't solidly prove. They could remain in public records and harm your reputation as well.

Be aware that even if records are sealed, that only applies to public access. Sealed records can still potentially be accessed by law enforcement, the IRS, or other government agencies in some cases. And the sealing isn't necessarily permanent – a judge may later unseal records in response to a request.

The best approach is to work with your attorney to keep as much sensitive information as possible out of official filings and to resolve issues without the "airing of grievances" that can happen in court. When in doubt, have your attorney ask the court to seal or redact information to protect your privacy.

Protecting your privacy during divorce proceedings requires a multifaceted approach. Work closely with your attorney to take advantage of all your legal privacy rights and remedies. At the same time, be proactive and vigilant in securing your personal information across your devices, online accounts, and records. Don't give your spouse any openings to access your data and use it against you. With the right precautions and legal guidance, you can emerge from a divorce with your sensitive information and reputation intact.

References

• The Computer Fraud and Abuse Act is mentioned as potentially being violated if a spouse accesses personal devices without permission. However, the article does not provide a direct citation for this law.
• The article mentions that many states have "revenge porn" laws criminalizing nonconsensual sharing of nude or sexual images/videos. However, it does not cite any specific state laws or statutes.
• Federal copyright law is referenced as potentially helping to remove private photos/videos shared online by a spouse, via DMCA takedown notices. The Digital Millennium Copyright Act (DMCA) itself is not directly cited.

For more insights, read our Divorce Decoded blog.