Secretly Recording Your Spouse During Divorce

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 truly successful?

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 discretion.

If you have further questions about using recorded evidence in a divorce case, contact our firm to schedule a free case evaluation.