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Can You Secretly Record Your Spouse During a Divorce?

Posted by Mariya Furman | Jul 18, 2022

Everyone knows that not all divorces are friendly and respectful. If your spouse has become verbally abusive and making threats during the divorce proceedings, you might be considering recording the conservations as evidence of their conduct.

Making recordings of your spouse without their knowledge or consent, however, in a California divorce can potentially cause you to encounter some legal issues. In other words, please don't do it, as there are different legal ways to collect this evidence.

Can You Secretly Record Your Spouse During a Divorce?
Secret recordings of your spouse during a divorce will not usually be allowed as evidence in court.

The chances of a divorce court allowing you to use secret recordings as evidence are very low. In other words, it's not worth the risk of facing criminal charges and placing you in a negative light with the court. Instead of running the risk of secretly recording a private conversation with your spouse, use other steps to support your divorce case.

California is a two-party consent state, meaning it's against the law to record your spouse during a divorce. If you are engaged in private conservation with someone, you must obtain consent before you start recording.

If you are found to have secretly recorded conversations, you could be criminally charged with Penal Code 632 PC “eavesdropping,” which carries up to one year in county jail and a fine of up to $2,500.

In addition to potentially being charged with eavesdropping, there is another reason you should not record private conservations with your spouse. California is a no-fault divorce state, meaning you don't need any evidence to get a divorce.

You only need to state irreconcilable differences have broken the marriage. Further, if you ask your spouse for permission to record your conservations, there is almost no chance they will engage in conduct you seek to record as evidence. In this article by our California divorce and family law attorneys, we will examine this critical subject in much greater detail below.

Are There Any Exceptions to this Rule?

Yes, there are some exceptions to the rule on secretly recording conservations with your spouse:

  • They only apply to private conservations,
  • They don't apply to a spouse leaving recorded messages, and
  • If your spouse leaves written messages, such as an email.

Perhaps your conservations with your spouse can be overheard in public? In that case, recording a conversation in a public space without your spouse's knowledge is allowed, but only if there is no reasonable expectation of privacy.

Perhaps your spouse leaves a recorded message on a voicemail? In that case, anyone who leaves a message is considered to be agreeing to be recorded.

In other words, anything said in a recorded message or a text message can be used as evidence in a California divorce case, which could be helpful for issues such as child custody or spousal support.

Likewise, written messages are also allowed to be collected and submitted as evidence. Of course, you can't unlawfully gain access to their email or social media accounts to collect written messages. Further, if your spouse sends you an email or a direct message, you can submit these as evidence in court.

What About Admissibility in Court?

Most divorces are not sudden events that you didn't see coming. There is a lead-up of events up to a divorce, and your spouse might be making outrageous statements you believe could help you in the upcoming divorce proceedings.

Perhaps you think that recording the private conversations between you and your spouse without their knowledge is the best way to support your case, such as:

  • unfaithfulness and adultery,
  • evidence of domestic violence and abuse,
  • evidence of potentially criminal behavior,
  • hidden assets or debts.

In most cases, if you record your spouse without their permission, it will not be admissible as evidence during a divorce case. California family law courts consider illegally obtained recordings inadmissible as evidence in court proceedings.

Courts won't allow secret recording unless you get special permission, such as evidence of abuse.

This means the spouse who made the secret recording will not be allowed to use them in their divorce case unless the judge gives them special permission, such as in cases that involve a child's well-being. The primary goal of all family courts is to make decisions based on a child's best interest.

Thus, for example, perhaps you have secretly recorded lengthy conservations with your spouse that prove domestic violence, child abuse, or neglect?

In that case, the judge will typically consider accepting this as admissible evidence during your divorce. Still, they will not generally allow several small portions of private conservations that could be taken out of context.

Readers should note that secretly recording your spouse or kids will not likely be allowed to be used as evidence during your divorce case. Further, most judges will consider secret recordings a violation that could hurt your case.

What is the Eavesdropping Law in California?

California is a “two-party consent” state regarding the recording of conversations, which means both parties to exchange must be aware that it is being recorded and give their consent. 

California Penal Code 632 PC is the statute that makes it illegal to record conservations without permission, and it's known as “eavesdropping” or “wiretapping.” To be convicted of PC 632 eavesdropping, all the elements of the crime listed under CALCRIM 1809 must be proven:

  • you intentionally recorded the conservation,
  • you used a recording or amplifying device,
  • you did not have consent from the other person,
  • the other person had a reasonable expectation of privacy,
  • your conduct harmed the other person.

Virtually any analog or electronic technology that allows the listener to amplify or record confidential communication between two or more parties will qualify under this law. 

The related crimes include Penal Code 631 PC wiretapping and Penal Code 647j PC criminal invasion of privacy.

What Are the Penalties for Eavesdropping?

If you are convicted of violating Penal Code 632 eavesdropping law, it's a wobbler that can be charged as either a misdemeanor or felony crime, and the penalties include the following:

  • For a misdemeanor violation, the maximum punishment for a first violation is one year in the county jail and a $2,500 fine. A second violation can result in a fine of up to $10,000;
  • If charged as a felony PC 632 violation, the penalties can result in 16 months, two years, or three years in state prison, as well as a $2,500 fine;
  • Restitution owed to a victim of $3,000, or three times the amount of the damages that were caused by the recording

Get Legal Representation from California Divorce Professionals

If you need information about what types of communication you can collect from your spouse in a divorce, then contact our California divorce lawyers to review all the details of your situation.

California Divorce Professionals
Contact our family law attorneys to review your case.

While recording your spouse or children seems without their knowledge or consent seemed like a good idea at the time to gather for your case, the reality is you must be cautious acting like this.

It's illegal and makes you look desperate; most judges will not approve of the act of recording. It can erode your credibility and sometimes backfire.

If you need to gather evidence to use during your divorce case, consider documentation by writing it down. This could include detailed descriptions of private conversations with your spouse and kids.

If you need legal representation in your divorce, contact our experienced family law lawyers for a case review and learn how to build your case.

The California family law attorneys at Furman and Zavatsky are in Los Angeles County, California. We offer a free case consultation at (818) 528-3471 or use the contact form.

About the Author

Mariya Furman

Attorney Mariya Furman is licensed to practice before all of the Courts of the State of California, the United States Court of Appeals for the Ninth Circuit, and the United States District Court for the Central District of California. After receiving a Bachelor of Arts degree from Case Illinois I...

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