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Spousal Spying: Should You Record You Spouse In Your Divorce?

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So, let’s imagine for a moment that you’re somewhere in the process of getting divorced. Maybe you’re just thinking about what it would be like to file for divorce, or maybe the case has already been filed and you’re in the thick of litigation. You’re going through another list of documents buried who-knows-where that your attorney wants you to send over, and suddenly you have an idea: What if you could just show the court how unreasonable your spouse was, and how terrible it is having to be near and around them? What if you had some irrefutable proof that your spouse was a no-good, lying, dirty scumbag, which you could present to the judge? Or maybe you could prove that she promised you something, or he said he wasn’t going to file papers on that issue? So, you begin to get a little bit clever — maybe you log into your spouse’s account on the family computer and read a couple emails. Maybe you get high-tech, and put an app on your spouse’s phone that records their calls. Maybe you go the low-tech route and just hide a tape recorder nearby while you talk to them about the case. Now, you’ve got irrefutable proof, right? This case is now in the bag, right?

Wrong. What you’ve got is several problems, including possible felony charges against you. The recordings you’ve made will not help you in your divorce case.

There are three different areas of law that effect recording other people. Both federal and state law restrict and limit what can be recorded, and when. Once a recording exists, there are rules on what kinds of things can be offered as evidence at trial.

Recording Your Spouse Without Their Knowledge Is Prohibited by Federal and State Law

Under federal and state law, interception and unauthorized access to wire, oral, and electronic communication is prohibited. This covers a wide variety of communications, including telephone conversations, emails, and even recording with a tape recorder while just talking to someone face-to-face. It also prohibits certain methods of recording communication, such as making audio recordings of another person without their consent are prohibited, key loggers, GPS trackers, hidden cameras, and almost any other technological means of getting electronic communication from someone without their knowledge or consent.

Now, obviously, you aren’t breaking the law every time you take a picture with the camera in your phone. Laws on recording and privacy typically become an issue when a person would have a reasonable expectation of privacy: A person has an expectation of privacy while speaking quietly to a family member while in their own home. A person shouting in the middle of the street doesn’t have an expectation of privacy.

All Parties In the Recording Must Consent

California is a two-party consent state. This means that every party being recorded must knowingly consent to being recorded. You cannot begin a conversation with your spouse while a recording device has been hidden somewhere. You also cannot send in someone else to ask certain questions while recording without your spouse’s knowledge and consent. And you absolutely cannot record your spouse speaking with another person, without either of them knowing about it, in a situation where either of them has a reasonable expectation of privacy.

Not All Recordings Are Prohibited

This isn’t an absolute bar to recordings. It only bars recordings made without one or more person’s knowledge and consent. Only the people being recorded need to consent to the recording. So, for example, if your spouse uses your children as messengers to tell you things, and your children consent to being recorded, you’re fine. If your spouse sends you an email, that email is yours to print out or use as you want. If your spouse calls into a radio station to tell the host of the show about how he’s hiding millions of dollars in a Swiss bank account, that’s probably fine. But, if your spouse was speaking to someone, and either of them had a reasonable expectation of privacy, you need consent from both before you record anything.

Evidence Law My Limit Use of Recording

Evidence law generally restricts what spouses and their lawyers can present in Court, and how spouses and their lawyers are permitted to use the things they do present. A full overview of evidence law is beyond the scope of this article, but two points are quite important to note.

The Recording Must be Accurate and Authentic

The first point is, before a party or their lawyer can present evidence in Court, they must prove that whatever evidence is being offered is the thing that the party or lawyer says it is. For example, if a lawyer is trying to offer a picture of a crime scene into evidence, they need someone to testify about how accurately the picture represents the crime scene, and how the picture was taken to ensure it was accurate. This is relevant for recordings because someone will still have to testify about the recording’s accuracy before it can be used in Court. This may limit the extent to which a recording may be used if it was “mailed to you anonymously,” or you acquired the recording by other questionable means.

The Recording Must be Relevant

The second point is, evidence must relate to an issue in the case. California allows for no-fault divorces, which means courts generally aren’t concerned with why parties want a divorce. Even if a recording is legally made, and incredibly well-verified, if all does is portray your spouse as a nasty person, it’s not relevant to the case. Nastiness, on its own, isn’t especially relevant to a divorce case: if the court will give you a divorce for any reason, then it doesn’t matter that you can prove your spouse kept saying nasty things to you.

Of course, exceptions exist, because exceptions always exist in law. In cases involving domestic abuse or retraining orders, proof of behavior is an incredibly powerful thing, and is directly relevant to the case.

There Are Often Other Ways To Get Comparable Evidence Other Than By Illicit Recording

In general, however, you must overcome significant hurdles to get recordings of your spouse admitted into evidence. Such recordings are also quite dangerous to create in the first place because of federal and state laws prohibiting making such recordings without consent. While it might be tempting for you to go out and collect audio recordings of your spouse, there are usually different, legal ways to get most of that same information, in formats which are more easily admissible in court, and do not risk jail time.