Although a no-brainer when it comes to contemplating divorce, it’s remarkable how often couples forget about old bank accounts they thought had been emptied and closed, but turn out to be active and full of money.

This happened recently to one of our clients, who discovered a major cash purchase made by his wife when the store mistakenly sent her some correspondence about the purchase to their home address.

Less well known by couples but increasingly important is the need to take an inventory of email accounts. Just as bank accounts contain money you may want to get at, email accounts can reveal the location of money you want to protect, as well as financial information you may not be ready to divulge.

This issue came up in a New York courtroom this month: the wife and major breadwinner thought she had closed her husband’s email account when he moved out, but the account remained open.

Worse for her, the husband had set up both email accounts so that the wife’s account forwarded all her outgoing email to the husband. That setting remained in place long after the husband moved out. The only way she discovered the forwarding setting was that after closing her husband’s account for good, she began receiving notices that messages she sent could not be delivered.

She first ignored these, but when they continued appearing week after week, she carefully read one of the notices and saw that her email account had been trying to forward her outgoing messages to her husband’s now-dead account.

The result was that the wife brought an action against the husband for violations of the Federal Wiretap Act and the Stored Communications Act. The lessons here are pretty clear:

  1. Getting access to someone else’s email is under most circumstances illegal without their knowledge. In the case above, the wife originally may have consented to the forwarding arrangement but the judge has ruled that under the Wiretap Act the scope of her consent (whether it extended to post-separation forwarding) is a question for the jury.
  2. Reading the fine print on the internet is well worth your time. We’ve written before on our companion blog, The Ethical Investigator, about email headers in Digital Assets: Worth Money, but Also Great Providers of Information. But here, the consistent attempts by her account to forward email to a place she had not specified were there for her to see as long as she didn’t just erase the relevant message from the service provider.
  3. Email accounts are things of value, not so much for what they cost to maintain but what kind of information is held in them. If your account is jointly owned, the other owner can claim he has the right to the messages you have sent but not copied that other owner on. It should be commonplace when asking about the other side’s assets in discovery to ask about ownership of electronic assets.