The simple answer is no, it is not legal to record your spouse unless that person consents to being recorded. Under California Penal Code section 632, it is a crime to record a telephone call or conversation without the consent of both parties to the call.
A violation of this section could result in a fine of up to $2,500.00 and a jail term of up to a year. You can also face imprisonment in the State Prison, which could be a sentence of 18 months or more. For a second violation, the penalties increase to a $10,000.00 fine and a similar jail sentence.
Additionally, civil penalties could be attached. Those fines could be $3,000.00, or three times the amount of damages caused by the recording.
It is not legal to record, nor is it a wise choice to record anyone who does not expressly consent to the recording as the risk to your liberty and financial security is very real. If your spouse or partner leaves a recorded message for you on your phone or voicemail, they are consenting to being recorded and you can use that recorded message as evidence.
Are Private Conversations Legal to Record?
California law treats every private conversation or telephone call as confidential, at least where there is a reasonable expectation of privacy. For instance, if you hold an open conversation in a restaurant or hotel lobby there is minimal expectation of privacy and any recording made might be able to be used in a court case.
Keep in mind that the California Evidence Code prohibits anyone from using an illegal recording as evidence in court. There are some exceptions, such as to prove someone is lying about something, known as impeaching a witness. For impeachment purposes you do not have to give the opposing side a copy of the recording in advance, but they are entitled to a copy when you enter the recording into evidence.
The process of obtaining information and documents in a court case is known as discovery. If you have a recording that wasn’t legally obtained, you will have to furnish the other party or their attorney with a copy in advance of going to court. This could lead to legal consequences and put your case in serious jeopardy.
If you have recorded your spouse and you are unsure what to do with the recording, discuss this with your family law attorney and explain the circumstances under which it was obtained. This will minimize your risk and give you an idea if it was legal to record.
Since California is what’s called a “no-fault” state, you do not have to prove a reason to get a divorce, so recording your spouse to show they did something wrong may very well backfire and cause you more trouble than it’s worth.
Having answers to your legal questions and support during your family law matter are important. JWB Family Law is ready to help you with an experienced legal team in San Diego, CA. Contact us today for more information and to schedule a free 30-minute consultation.