Privacy and Community Property

Abstract

Technological advances are transforming the issue of intraspousal privacy. Increasingly, spying spouses are covertly obtaining emails and text messages, while spied-on spouses are filing lawsuits alleging intrusion upon their seclusion. The majority of courts that have examined the issue of intra-spousal privacy have held that spouses are no different than other individuals; spouses do not forfeit through marriage their expectation of privacy, even from one another.

Determining the scope of a spouse’s right of privacy is uniquely difficult in the nine community property jurisdictions within the United States. The default rule in these states is that property created or acquired during marriage is classified as community property, and thus jointly owned by both spouses. Because two people have an ownership interest in community property, managerial rules must be written to determine which spouse controls the property. The default management rule generally allows either spouse to have the authority to manage community property, regardless of which spouse acquires or uses the property. Because of these ownership and managerial rules, it is unclear what, if any, rights of privacy spouses have vis-à-vis one another with regards to community property. This ambiguity is an increasingly vexing problem, particularly given the exponential increase in the creation of property that a spouse may wish to keep private—such as email and text messages—as well as the constant development of technology that makes these forms of property easier and more accessible.

This Article dissects the intersection of community property and privacy. In doing so, this Article finds that the privacy rights of spouses in community property jurisdictions are, at best, uncertain. History, modern jurisprudence, and policy considerations lead to the normative position taken herein: that spouses in community property states should have an unambiguous right of privacy from one another, even with regards to property jointly owned. This Article provides a series of alternative strategies that courts and legislatures may pursue to ensure that such a right is fully protected, including possible modifications to current community property ownership or management rules.

Keywords: property; community property; privacy; family law; tort law