Generally speaking, information as to whether your spouse is having an affair will not be helpful in your divorce proceeding, because California is a no-fault divorce state. This means that whether or not one person was unfaithful during the marriage typically has no bearing on the outcome of the divorce, including the property division and support award.
Additionally, unless your spouse has given you permission to use his/her computer and has given you access to his/her various email accounts that he/she may be utilizing to carry on the extramarital affair, you may be treading in murky, even criminal, waters.
California Penal Code Section 502 provides that any person who “knowingly accesses and without permission alters, damages, […] or otherwise uses any data, computer […] or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data […] is guilty of a public offense.”
The Federal WireTap Act provides that any oral or wire communication that someone intentionally intercepts in violation of this Act is inadmissible in both federal and state court proceedings AND any intentional use of the contents of oral or wire communications collected in violation of this Act is punishable under Federal Law. The Federal Stored Communications Act provides that it is illegal to intentionally access (without permission) a facility through which an electronic communication service is provided (for example, an email server) and then take, alter, or prevent access to a wire or electronic communication while it is in electronic storage. Last but not least, Family Code Section 2022 provides that evidence collected by eavesdropping in violation of Penal Code Sections 630637.9 is inadmissible and the Court may report violations to a prosecuting agency.
In conclusion, I would advise that you seek counsel before you consider engaging in such tracing of your spouse’s personal activity so as to safeguard yourself from criminal prosecution, not to mention a waste of money if the information is inadmissible in court, and any needless emotional heartache that you may learn from the spying.
Megan E. Green is an associate at Feinberg Mindel Brandt & Klein in Los Angeles. Her practice is devoted to the area of family law.