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Right to Privacy Between Spouses

While most think that being married means being one with your spouse, it doesn’t mean that you shed your individuality. Yes, you will share many things with your spouse, but no, you do not become one. Each of you has rights and you can even invoke this against the other. Setting boundaries is not meant to put a wall between you and your spouse, it is a healthy mechanism to preserve your individual rights – and sanity!

Trust and respect are the foundations of a good and lasting marital relationship. If you trust your spouse, you should respect his or her rights. And even if you don’t want to, you still have to.

After all, it’s what the law mandates. The Texas Constitution recognizes and protects personal privacy from intrusion that is unreasonable. Texas protects individuals against numerous forms of invasion of privacy. This includes public disclosure of private facts, among others.

You cannot invade the privacy of your spouse

A person cannot intentionally intrude upon another’s seclusion, solitude, or private affairs through physically invading their property or by eavesdropping on a private conversation via microphones, wiretaps, or spying – even when married to each other. Also, snooping around is a big no-no. Snooping around between spouses has been increasing as the technology for modern surveillance becomes more accessible and affordable.

Marriage does not remove an individual’s right to privacy

A case in Texas ruled by the state’s Court of Appeals stated that there is nothing in Texas law that suggests that the right of privacy is only applicable to people who are unmarried. The actions of a spouse in recording the other spouse who the former believes is in complete privacy, could be considered as an invasion of privacy. This violation is considered a tort that could entitle the violated spouse to compensation or monetary damages.

Invasion of privacy is a punishable act

Under Section 33.02(a) of the penal code of Texas, a person commits an offense by accessing a computer knowingly and without the owner’s effective consent. “Computer” includes modern smartphones.

A civil cause of action is also available for a person who has experienced the violation of Computer Crimes under Chapter 33 of the Texas Penal Code especially if the conduct that constitutes the offense was done knowingly or intentionally. Section 33.01 of the same code states that a person “accesses” a computer by approaching, directing, communicating with, data-storing, retrieving data from, modifying or changing data or computer software in, or otherwise using any resource of a computer.

Also, it’s not just smartphones or computers, you cannot read messages not addressed to you, break open private drawers, or record private conversations. In the same way, your partner can’t do the same to you.

What if it’s community property?

Courts have ruled that nothing in Chapter 33 of the same Code includes community property law for establishing ownership over the computer even if that phone is considered as community property.

The law defines “owner” as a someone who has title to and possession of the property, whether lawful or not. It also includes the restricting access to the property through the use of password protection, among others.

This ruling now establishes with certainty that any person, even a spouse, commits the offense if he or she intentionally or knowingly intercepts oral, wire, or electronic communications and correspondence which he or she is not a party thereto and without obtaining the permission of one of the parties to that communication.

Spouses or exes can be sued if they infringe on privacy laws to spy or snoop on one another during, before, or after a divorce. Trust and respect your partner. You can also demand the same from him or her.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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