If your relationship is on the rocks and you foresee a legal separation or divorce in the near future, you may think secretly recording your spouse is a good idea. If you are already divorced, you might believe you can use recorded conversations with your ex as evidence to support a claim you want to make with the courts. However, it is illegal to record your spouse in California unless he or she knows and consents to being recorded.
Secret Recordings Are Illegal in California
In general, you should not record conversations with your spouse or ex-spouse in California. Unless you have the individual’s consent to record, doing so is illegal and can expose you to criminal liability. Under California Penal Code Section 632, intentionally recording or eavesdropping upon a confidential communication without the consent of all parties is punishable by a fine of up to $2,500 per violation, as well as the possibility of imprisonment in a county jail or state prison not exceeding one year. For repeat offenders, the penalties increase to up to $10,000 per violation and/or a year of imprisonment.
Confidential communication means any conversation carried on in circumstances that would reasonably indicate that the parties involved desire it to be confined to them alone. It does not refer to communication made in a public gathering. In addition, you could face civil penalties for recording conversations without your ex’s knowledge or consent. This could be an additional fine of either $3,000 or three times the amount of damages caused by the recording, whichever is higher. It is not a wise choice to record anyone without their permission.
California’s laws against recording conversations apply to both in-person communications as well as phone calls. The law treats every telephone call as confidential where there is a reasonable expectation of privacy. Recording phone calls without your ex’s consent to do so could result in criminal and civil penalties. In addition, any illegally obtained recordings will not be permitted as evidence in court. Only recordings with two-party consent can be admitted as evidence in a family law case.
Other Ways to Prepare for a Family Law Case
Instead of secretly recording conversations or phone calls with your ex, prepare for your divorce or another type of family law case in other ways. Note that you do not need to prove fault to get a divorce in California. You do not need to record conversations to try to prove adultery to get divorced, for example. Recording conversations could backfire and place you and your case in jeopardy. However, collecting evidence in legal ways could help you build a family law case:
- Witness statements
- Medical records
- Criminal and police records
- Financial documents
- Social media posts or content
- Text messages and emails
- Legal recordings in public or with consent
If you have already recorded your spouse and do not know what to do with the recording, discuss it with your attorney. Explain the circumstances that were present when you made the recording so that your attorney can give you an idea as to whether or not it was legal. Your lawyer can then advise you as to what to do with the recordings. Hiring a family law attorney for any type of case can also improve your chances of obtaining the results that you want. Contact Boyd Law for more information during a free case consultation.