If you can secretly record a President, can you secretly record a spouse?

With the recent revelation that President Trump’s attorney recorded a conversation between himself and the President, the issue of recording private conversations has become a hot-button topic. Interestingly, this issue is not new in the world of divorce. Parties to a divorce litigation, especially one involving the custody of minor children, often come to their attorneys with conversations that were secretly recorded without the knowledge of the other spouse. Is this useful in a divorce litigation, and most importantly, is this legal? Here’s what you need to know if you want to secretly record your spouse.

Can You Secretly Record Your Spouse?

The answer to this question depends greatly on the state in which the recording is taking place. The Federal Wiretap Act makes it is a crime to record conversations unless one person consents to the conversation being recorded. But like most laws, it is not that simple. Some states, “two-party consent” states, actually require that ALL parties to the conversation consent to it being recorded, and if you are trying to play Inspector Gadget in one of those states, you could be in for trouble.

I say all of this to say that it is critical to know where your individual state stands before you whip out the recording device. Most states, including New Jersey and New York, align with the federal Wiretap Act and only require that one party consent to the recording.  That one party could be, and typically is, you. If you are in a “one-party consent” state, great, record away. But if you are in one of the twelve “two-party consent” states, put the recording device down. That secret recording you made of your spouse screaming like a lunatic is actually illegal and could get you in hot water.

No matter what state you are in, you may not plant recording devices in your spouse’s vehicle or even rooms within your own home to secretly record your spouse having conversations to which you are not a party. Many divorce litigants believe that it will be helpful to attempt to record a conversation between their spouse and a lover – or worse yet, the spouse’s attorney. This is a huge mistake, as the resulting recording is not only unusable but illegal.

There is a limited exception to recording conversations to which you are not a party if those conversations involve your children. However, even in those circumstances, you should proceed with extreme caution. While a parent can technically give consent on behalf of the child, it must be done in good faith. Putting a recording device in your child’s backpack while he is with the other parent in order to listen in or to gain the upper hand in a divorce litigation is unlikely to be considered “good faith.”

Is It Helpful?

The next question to consider after determining whether recording the conversation is legal is whether the conversation is actually helpful. What does the audio recording attempt to prove? As a divorce attorney, I will tell you that when clients come to me with what they believe is the “smoking gun,” it typically is not. In fact, nine times out of ten, the “smoking gun” is utterly useless. To be fair, there are some situations where a recording would be extremely helpful.

In a domestic violence situation, a recording could be worth its weight in gold if it proves that the alleged act of domestic violence did or did not occur. In a child support or custody dispute recording an admission that one parent is only seeking custody to avoid a child support obligation would also be useful. However, if your state does not require a finding of fault to enter a judgment of divorce, obtaining an audio confession of infidelity may not have the impact on your divorce that you believe it will. In fact, it may have no impact at all.

While many litigants believe that showing the court that his or her spouse is an awful person will impact the Judge’s overall decision, in a state that does not require a fault basis for divorce, this is not usually the case. Notably, all 50 states have some form of no-fault divorce option, with New York being the last state to adopt such an option in 2010. In these cases, the Court does not decide the outcome of the divorce litigation based upon fault at all, but simply follows the applicable laws when making a decision.  Even when fault grounds are alleged, the court may use the recording to prove the fault grounds only, but not to affect any award that is entered. Naturally, the impact of fault on the overall outcome of a divorce litigation would depend on the applicable laws in the state in which you divorce and would also impact the usefulness of any recording. There are some states that allow judges to consider some level of fault.

All in all, you should exercise caution before deciding to secretly record your spouse – or prior to making a secret audio recording of any conversation. It is important to be aware of the requirements of your state relative to consent. Further, your recorded conversation may not have the legal relevance that you believe it does. This is especially true if you are in a no-fault divorce state, where evidence of infidelity, a bad attitude, or any other behaviors that may have caused your divorce are of no real consequence. Ultimately, the best course of action is to consult with your attorney regarding the legality of any recordings that you wish to make and whether making those secret recording will help or hurt you.

Robyn E. Ross, Esq. is certified by the Supreme Court of New Jersey as a Matrimonial Law attorney, a qualified family law mediator and one of the founding partners of Ross & Calandrillo, LLC. www.rcfamilylawyers.com