Michigan is a “no-fault” divorce state, meaning that the court will grant a divorce regardless of the fault of either party. Fault commonly refers to actions such as cheating or domestic violence. Instead, a party only needs to allege that there has been a breakdown of the marital relationship in order to obtain a divorce. Despite Michigan being a “no-fault” divorce state, fault often is relevant when dividing marital property or when a party plans to request spousal support.
In such regard, clients often tell their attorney that they have proof of fault by their spouse. Typically, such evidence involves text messages, emails, or some other form of electronic communication. While such evidence may be helpful, how the evidence was gained is imperative to its use in a divorce proceeding.
MCL 752.795(a) makes it illegal to “[a]cess or cause access to be made to a computer program, computer, computer system, or computer network to acquire, alter, damage, delete or destroy property or otherwise use the service of a computer program, computer, computer system, or computer network” without the owner’s knowledge and consent. As such, actions such as logging into a spouse’s email or unlocking a spouse’s phone to take screenshots may be a criminal act.
The criminality of such actions in the context of a divorce action was explored in the 2011 Mich-igan Court of Appeals decision, People v. Walker. Therein, Ms. Walker was served with an emergency custody motion filed by her ex-husband, Mr. Rudd. In support of Mr. Rudd’s motion, various emails between Ms. Walker and her friend were attached as exhibits. The emails showed that Ms. Walker was having an affair during her marriage to the Defendant, Mr. Walker.
Mr. Walker admitted to guessing the password for Ms. Walker’s email account and printing the emails off Ms. Walker’s account. Thereafter, Mr. Walker admitted to delivering the emails to Mr. Rudd. Ms. Walker asserted that she never gave the Defendant permission to access her email. Mr. Walker was criminally charged under MCL 752.795 for accessing Ms. Walker’s email account without her consent.
In sum, a party may think they have a “smoking gun” when it comes to the fault of their spouse. Yet, if that “smoking gun” was gained by unlawful access to their spouse’s email, text messages, or Facebook account, using the information during a divorce process could result in criminal charges.