Your spouse is cheating on you, so you secretly record phone calls and videos of them cheating and use those recordings in court to prove their infidelity. The court agrees with you and speedily grants you the divorce. What’s more, the judge awards you full custody of your children, and the majority share of your joint assets, on the basis that it was your spouse who was cheating. That’s how it works, right? If only things were that simple.
The above scenario is about as far from reality as you can get. First, your recorded evidence is almost certainly not allowed in court - and in principle, it could lead to you being charged with illegally recording someone without their consent. Second, California is a no-fault divorce state, meaning irreconcilable differences and incurable insanity are the only two grounds for divorce.
Third, divorce proceedings are rarely concluded swiftly and without hassle. Finally, judges make their decisions based on the complete picture, not on recordings that may provide a completely false picture of the marriage.
Secret voice and video recordings are a complete hornet’s nest, not just in divorces but also in many other legal scenarios. To complicate matters, if you look online for clarification, most explanations muddy the waters even more.
Keep reading to explore the laws around secretly recording your spouse during a divorce, some of the potential unintended consequences, what to do if your spouse is harassing you, and how a lawyer can help you through the whole divorce process.
California law is clear about the legalities of recording another party. California Penal Code 632 states that it’s illegal to record without the other party’s consent, period. If you’re secretly recording your cheating spouse, you’re breaking the law - and may be prosecuted.
You may think you’re helping your cause by making secret recordings. However, that evidence is probably not allowed in court, and you don’t need evidence of wrongdoing to secure a divorce in California. Accordingly, the recordings may serve no purpose; plus, they could land you in hot water.
In the early stages of a divorce - the discovery phase - the opposing lawyers communicate. If you give your attorney any secret recordings, they’re generally obligated to share them with the other side. If that happens, you can be sure your spouse and their lawyer will be all over the fact that you made illegal recordings.
There’s a human side to all of this too. Emotions run high during a divorce, and your spouse may be furious to learn that you’ve been recording them without their knowledge. Secret recordings can amplify bad feelings, harden attitudes, and drive the two sides further away from a more peaceful resolution.
If you ask someone’s consent to record videos and voice calls, then, by and large, you’re in the clear. Secretly recording them is a different ballgame. Most people are uncomfortable with the idea of phone-tapping and eavesdropping, and secret recordings may equate to the same thing. Phone-tapping and eavesdropping, for the most part, are illegal under California Penal Code 631, which means that even the simple act of picking up your spouse’s phone to have a snoop might be considered illegal.
Beyond directly browsing your partner’s phone, some shady private investigators used illegal trojan horse apps on phones to record and ensnare people. But the technology’s now gone mainstream. You may use a tracking or monitoring app like Spyic to keep an eye on your children’s phone usage - but it’s only a small step until you’re potentially illegally using the same technology to spy on your partner. Do that, and you could be skating on thin ice.
By their very nature, secret recordings are made without the consent of the other party. In most cases, they can’t be used in court. However, there are some very rare exceptions, for example, where your spouse has stated one thing, but the recording proves that they’re lying. In this instance, you may be able to use the recording to shine a spotlight on their dishonesty.
If your spouse is harassing or threatening you during your divorce, keep records of their actions (plus details of witnesses), avoid scenarios that you know cause trouble, and never inflame already delicate situations. For the reasons already outlined, you may face legal and other consequences if you record anything, so think very carefully before doing so. Getting their consent, though, removes the issue altogether.
If the situation is serious, a law enforcement officer or attorney can advise you on formal legal actions like restraining orders.
Divorce is never simple, quick, and pain-free, but it’s worth trying to smooth the transition. There are so many different aspects - emotional, financial, legal, division of property, child custody, alimony, and so on - that anything you can do to prepare for divorce properly is hugely beneficial, especially when children are involved.
Many people conclude that the best way to prepare is to employ a specialist divorce lawyer’s services. It’s possible to negotiate your way through without a lawyer, but you may be taking a big risk, especially if your spouse has hired an attorney.
Personal recommendation is a great way to find a divorce lawyer, but you should also look for someone who’s experienced in the area, transparent about costs, and easily contactable. Why not draw up a shortlist and interview a few candidates, to get a feel for who’ll serve you best? Look for an attorney who’s upfront, rather than one who tells you what you want to hear.
An attorney isn’t just there to give you expert advice, practical help, and moral support. They also ensure you avoid any pitfalls or illegal actions that could jeopardize your case. Just as importantly, they can advise on evidence collection alternatives that, unlike secret recordings, are legal, practical, and effective.
It’s important you play your cards right in any divorce case and don’t give any advantage to the other side. Making secret recordings could provide an ace to your spouse and represent a costly error for you. That’s why most people conclude that it pays to have a top-class divorce lawyer on their side to avoid simple mistakes and help secure the best possible outcome.