Can You Record Your Spouse to Show Harassment?

Child custody and visitation, Co-parenting divorce, Divorce, Domestic Violence

There are many reasons for spouses to make the difficult choice to get divorced. Some of these may involve very stressful experiences, and those experiences can lead to emotional reactions that are difficult to work through. Other times, there may be some very valid reasons for pursuing divorce and the divorce process can lead to your spouse potentially engaging in disturbing behavior that you want to capture for the court.

In either case, it may be tempting to secretly record your spouse to demonstrate harassment, infidelity, lack of fitness for custody, or any number of other reasons. Events that unfolded in the recent election demonstrated how damaging secret video recording can be. While little has been discussed about the potential legal consequences for whoever secretly recorded candidates potentially engaging in sexual harassment, secretly recording your spouse in California can expose you to your own serious legal consequences.

Can You Record Your Spouse to Show Harassment?

California Privacy Law

California is what is known as a two-party state when it comes to recording conversations. This means that both parties being recorded must consent to the recording in order for the recording to be lawful. California Penal Code §632 covers parties in the state engaging in the recording of confidential communications and makes recording such conversations a crime if both parties do not consent to the recording.

Confidential communications are considered to be forms of communication carried out in circumstances that a person reasonably believes to be confidential between the two parties. Generally, this includes phone conversations. It does not necessarily apply to communication that takes place in a public place like a hotel lobby or a park. That means making the decisions to record your spouse could expose you to criminal and civil penalties in some situations that include:

  •      A fine of up to $2,500;
  •      Up to a year in jail; and/or
  •      Civil penalties of $3,000 or three times the amount of actual damages caused by the secret recording.

As you can see, engaging in secret recording can be extremely risky for you.

Recordings as Evidence

Generally, California prohibits parties from using illegally obtained recordings as evidence in court. However, there are some exceptions to this rule. In some cases, secret recordings can be used to impeach a witness or to encourage recollection of a conversation or event. However, there is generally little need for a person to try and do this during divorce proceedings. California is a “no fault” divorce state, which means that it is not necessary to prove fault on your spouse’s part to be granted a divorce. Thus, collecting evidence to prove your spouse has engaged in some type of questionable activity will often have little impact on the outcome of your divorce.

Additionally, while the information you share with your California divorce attorney is confidential, bringing an illegal recording of your spouse into the mix can cause complications during the discovery period because while illegal recordings cannot be used as actual evidence, they generally must be turned over to the opposing party when litigation is in the discovery phase. While you may think you have covertly recorded your spouse, having to turn such recordings over will notify your spouse and their attorney that you engaged in potentially illegal recording activity.

Legal Assistance with California Divorce

If you have made the difficult decisions to pursue divorce, it is important to find an experienced California divorce attorney that understands the divorce process. Working with an attorney through all steps of the divorce process can help you feel comfortable that your rights are being protected, and can potentially help stop you from taking actions that might be illegal. Jane Wesley Brooks has worked with numerous clients on their San Diego County divorce, and can use that experience to work with you, too. Contact JWB Family Law to schedule a consultation where you can find out more about what the divorce process might involve for you.

Getting divorced in San Diego County? Call us today. 619.234.6123

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