Recording Your Spouse During Divorce: Think Twice Before Hitting the Record Button

With the advent of cell phones, small portable cameras, and other technologies, it seems just about everyone has a recording device within arm’s reach.

No longer exclusive to those with fancy equipment, with the simple push of a button on your cell phone, you can record any conversation at any time. It is not uncommon to turn on the news and see a story about how a recorded phone call or meeting has impacted a high profile figure.

Yet, because those instances play out in the court of public opinion, we do not always think about whether those recordings are legal or admissible in court. However, in the context of divorce, it is essential to understand what role, if any, secret or non-consensual recordings can play in your case.

All too many clients in the midst of divorce think that recordings can be used as a tiebreaker in the “he said/she said” battles. However, the reality may be much different.

Recording Your Spouse During Divorce

Clients frequently walk into their attorney’s office holding what they believe to be key evidence against their soon to be ex-spouse. The client explains that they have secretly recorded their spouse and that the recording highlights their ex-spouse’s abusive behavior, their threats, or even their dissipation of assets.

On other occasions, the client has recorded their own children about parental preferences in the hopes it can be used as evidence in a difficult custody battle. What the client does not realize, however, is that the same recording they think will help them win the case may also be the one that leads to criminal ramifications for “illegal wiretapping.”

Federal law and many state wiretapping statutes permit recording if one party (including the recording party to the phone call or conversation consents. However, in other states, all parties to the communication must consent to it being recorded. Currently, the majority of states follow the federal law approach and require only one-party consent. The remaining states, however, take the opposite approach and require consent from all parties.

Understanding Your States Statutes

Although we can generally group federal and state laws into “one-party consent” and “two-party consent” categories, it is important to note that each state has its own specific statutes. Accordingly, it is essential to understand the intricacies of each state.

For example, though Massachusetts may be considered a “two-party consent state,” the Massachusetts Wiretap statute is specific in that it only prevents “secret” recordings and does not explicitly require consent from multiple parties. In other states, absent specific verbal consent, a recording could be found to be illegal.

Things become even more complicated if the recording is of a phone call that occurred between parties who are in different states. This scenario would call for the intersection of federal law and the law of multiple states.

For example, imagine that a divorcing client and their spouse are in the midst of an argument. The client, trying to gather evidence, reaches their hand in their pocket and hits record on their cell phone, unbeknownst to their spouse. The argument continues and the phone records the client’s spouse admitting that he is only seeking equal parenting time so that his financial obligation will be lower.

Moreover, he goes on to admit that he has hidden cash and that the income he reports will be much lower than what he actually earns. The client now has evidence to use in court, right?

First, it would depend on what state this occurred in. If it was a “one-party consent state” or under federal law, the client may have helpful evidence. However, if it is a “two-party consent state,” the client may not only have evidence that would be inadmissible, but they may have actually exposed themselves to criminal penalties.

It is also important to remember that just because your actions were legal, it does necessarily mean that your recording will be admissible in the court of law or will be gladly accepted by the fact finder.

The Reality

Although recording your spouse or children may seem like a good way to gather evidence for your case, the reality is that clients must be extremely cautious when doing so, or risk criminal repercussions. In most circumstances, it is unwise to record another person without their explicit consent.

Even with consent, there are many judges who would look negatively upon a client who records another, legal or not. In many instances, the Court may focus less on the content of the recordings and more on the act of recording.

Custody cases often depend upon the ability of the parents to effectively communicate and one-party recording the other may erode the judge’s faith that the person recording is a capable co-parent. Divorcing parties always need to be mindful of the consequences of their actions, as recordings can sometimes backfire.

Always be sure to consult with a lawyer in your state about any applicable wiretapping laws.

Steven E. Maalouf represents clients in a wide variety of family law matters including all aspects of domestic relations, divorce, guardianships, child support, alimony, custody, modification actions, paternity, restraining orders, domestic violence, parental alienation, and other matters. He also assists clients with issues relating to the Department of Children and Families. Steven’s practice also focuses on pro bono work and he serves as the firm’s liaison to the Greater Boston Legal Services and the Victim Rights Law Center. www.casneredwards.com