When you anticipate a
divorce or when you’re in the middle of a divorce proceeding, secretly recording
your spouse or your children may seem like a brilliant way to gather concrete,
indisputable evidence for your divorce case. After all, every day spouses
across the country quietly push the record button on their cellphones
in hopes of using it to their advantage in court, but are these efforts
If you have been secretly recording your spouse or your children or if
you plan to, we have news for you: You have to be extremely cautious when
it comes to recording other people without their consent, even if they
are your spouse or your children and such recordings are done inside your
own home or your own vehicle.
The reality is that when you record others without their consent, you run
the risk of facing criminal charges, especially if you anger your soon-to-be-ex-spouse
by violating their privacy rights, which are protected under both state
and federal laws.
Recording Devices Are Easily Accessible
Ever since cellphones became smartphones, they went from simple cellular
phones to computers, tiny cameras, calculators, video recorders, and tape
recorders – all in one tiny package. With advances in smartphone
technology, you no longer need to purchase all of this fancy equipment
separately. Now, you can have access to a video and voice recorder with
the touch of a button.
If you anticipate a battle in court with your spouse, your mind may go
to some news story where a high-profile public figure’s recorded
phone call or video impacted a court case. While such stories may play
out on the news and in the court of public opinion, you may not have given
much thought as to whether your own personal recordings would be legally
admissible in court.
However, if you are considering using secrete recordings as evidence in
your divorce, it’s important to understand how those types of recordings
play into a divorce case, and if they’ll actually get your spouse
in trouble, or if you’re the one that will be in legal hot water
for making non-consensual recordings.
Ask any divorce attorney and they’ll tell you that they have had
their share of clients in the midst of divorce have the misconception
that they can use their secret recordings to win their divorce case. The
reality is actually quite different than what many spouses think.
Can I Record My Spouse During My Divorce?
It’s common for divorce clients to walk into their attorneys’
offices saying they have what they believe to be powerful evidence against
their spouse in the form of cellphone voice or video recordings, or both.
Overly-confident, the client will say they have recordings on their phone
that prove their spouse is physically or emotionally abusive, mistreating
their children, abusing drugs or alcohol, or wasting marital assets.
The client will assume that with the damaging evidence on their phone,
they’re bound to win the “he said she said” battle in
divorce court. Other times, the client will have secretly recorded their
children talking about their preferences when it comes to child custody.
What the client doesn’t realize is that while making these secrete
recordings, they may have violated state and federal wiretapping or invasion
of privacy laws, which can lead to serious criminal ramifications.
“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,” Steven Maalouf wrote in
“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,” wrote Maalouf.
Maalouf had a very good point that we have to agree with. He mentioned how
child custody cases depend on the ability of the parents to effectively communicate
with each other and when one parent makes a secret recording, it can erode
the judge’s faith in the parent who is recording, especially as
it pertains to them being a capable co-parent.
If you’re divorcing, you should be mindful of your actions and what
their consequences can be. If you make secrete recordings, they can definitely
backfire. “Always be sure to consult with a lawyer in your state
about any applicable wiretapping laws,” he advises.
California’s Invasion of Privacy Law
One state law that can apply to secret recordings is the one pertaining
to the invasion of privacy. California’s invasion of privacy law
is covered under
Section 632 of the California Penal Code. Under sec. 632, it says that a person who
records someone without their consent, they break the law and face up
to a $2,500 fine per a violation, or imprisonment in jail or prison not
to exceed one year, or by a fine and imprisonment.
If the person has been convicted for violating the state’s privacy
law and they break the law again, they face up to a $10,000 fine, imprisonment
in jail or prison for up to one year, or a fine and imprisonment. A violation
of California’s invasion of privacy law is called a “wobbler”
offense, which means it can be charged as a misdemeanor or a felony. The
decision of whether to file as a misdemeanor or felony is at the prosecutor’s
If you have further questions about using recorded evidence in a divorce case,
contact our firm to schedule a free case evaluation.