Can I Record My Spouse during Our Divorce?

Pretty much everyone has a device capable of surreptitious surveillance these days – it’s your smartphone! As this tech has become better and better over the years, devices have been able to produce incredibly clear audio and video recordings.

In a particularly contentious divorce, it’s no wonder why someone would want to leverage this technology for their benefit. Secretly recording a spouse’s admission to cheating, hiding assets, or even an outburst all seem like solid enough evidence to help someone in a divorce case – but it could do just the opposite.

Can I Use Recordings in My Divorce Case?

A dispute during a divorce can quickly devolve into a he-said-she-said scenario, so why would hitting the “record” button become a problem? Shouldn’t it help to settle the record once and for all? Not quite.

With regard to wiretapping laws, California is what’s known as a “two-party” state. This simply means that both parties involved in a private conversation must be aware that the conversation is being recorded and consent to its recording.

If someone secretly sets up their phone to record audio and/or video of a private conversation with their spouse, they have broken the law in California. Not only is the recording completely inadmissible as evidence in the divorce case, the spouse who made the recording could be criminally charged for wiretapping.

This is why it’s so crucial for spouses to resist the urge to catch each other in a “gotcha!” moment – doing so won’t help their situation in the divorce case and can backfire with remarkable legal consequences.

How to Legally Obtain Consent for Recording Evidence

If someone insists on recording their spouse, they must gain their consent to record the conversation. Keep in mind, however, that this is still probably a very bad idea for both individuals. In most cases, the best way to gain legally admissible testimony is to have your attorney depose the other party.

A deposition is a formal arrangement where a party answers questions by the opposing counsel. The questioned party can also have their attorney present to provide legal guidance and support. Depositions can be shown in court, but they are often transcribed as written documents submitted during discovery.

You Probably Don’t Even Need Recordings

California is a no-fault divorce state, which means that neither party needs to prove anything to settle the divorce. Violating your spouse’s right to privacy can also put you in a difficult legal situation, possibly even leading to criminal charges. For these reasons, the best course of action is to avoid recording your spouse and let your attorney help you navigate your legal situation.

We at Claery & Hammond, LLP can provide the legal support clients need no matter how contentious or amicable their divorce may be. With our representation, you can have a better shot at getting just what you need out of your divorce settlement.

For more information, contact us online and request a free initial consultation!