Can a Secret Recording be Used in a Divorce Case?

unhappy couple

Can I Use a Recording of My Spouse in My Divorce Case?

record spouse conversationAttorneys understand that in the modern practice of the law there are very few “Aha!” moments. That is, it is rare for there to be a smoking gun or surprise witness that the other party involved in the dispute does not know about and is not prepared to address that changes the entire trajectory of the case. (This is due in large part to the modern advent of discovery statutes which require parties to exchange evidence and lists of witnesses they intend on using at trial well ahead of the actual trial.) Some spouses in a divorce case, however, are anxious to “one up” their soon-to-be ex and look for ways to obtain information that they believe can damage their ex’s legal position. They attempt to do this through accessing their ex’s computer, eavesdropping on conversations, and other secretive activities. Do these activities yield much that is useful?

Activities with Questionable Legality

spouse caught on cameraBefore addressing whether secretive activities like eavesdropping produce information that may be useful in a divorce, the question that must be asked is whether such activities are legal. The answer varies depending on the state. Most states prohibit one person from accessing the computer or computer files of another without that person’s permission. This would prevent a snooping spouse from resetting the password to his wife’s e-mail and social media accounts in order to sift through messages in search of harmful information. Eavesdropping or recording a private conversation between two individuals is also an activity whose legality varies depending on the state. States generally take one of two approaches:

  • In some states, only one person involved in the conversation needs to consent to the recording of the conversation. For example, in these states a spouse could record conversations she has with her spouse without breaking the law (since it is assumed that the spouse recording the conversation – who is also a party to the conversation – consents to the recording).
  • In other states, both people involved in the conversation must consent to having the conversation recorded. Thus, in the example above, both of the spouses would need to consent to having the conversation recorded before one spouse could do so.

Recording a conversation between your spouse and another person (such as a paramour) is almost never permissible because it is difficult to obtain the permission of even one party to the conversation, let alone both. As a result, one spouse cannot place a “bug” or listening device on the family’s home phones in hopes of recording incriminating conversations her spouse may be having with another person. Not only may the act of placing the bug be illegal itself and subject the spouse to criminal sanctions, but illegally-obtained conversations will almost certainly be excluded from court by the family law judge.

Do Out-of-Court Conversations Have Any Benefit?

spouse taking secret picturesThis is not to say that it is not important to document and preserve, if at all possible, comments and statements made by your ex-spouse outside of court proceedings. Statements concerning property division or child custody can be admitted and considered by the court so long as the statements are not obtained illegally and are properly preserved. Text messages, letters, voicemails, and other similar communications about relevant issues can be quickly admitted in your divorce case and considered by the judge.

Depending on whether your state is a true no-fault state, communications about affairs or other questionable behaviors may have little impact even if they could be legally obtained and presented in court. Unless the bad behavior affects your property rights, the value of the marital or community estate, or reflect poorly on the person’s ability to properly parent his or her child, evidence or recorded statements about “bad behavior” will likely have little persuasive power with your family law judge.

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