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Can I Spy On My Spouse During Our Divorce?

orange county divorce attorneys; The Maggio Law FirmThe state law of California discourages inappropriate spying on spouses in cases related to divorce or legal separation. Although it might seem okay to spy on your partner in a bid to catch hold of significant evidence against them, following your spouse around, using computer spyware, tracing devices on vehicles, and recording phone calls can be considered an invasion of privacy, so you should never do anything that would be considered against the law.  Use of a professional private investigator licensed by the state, on the other hand, is commonplace and can be helpful in obtaining information that could be used in court.

The no-fault rule

The state laws declare California a no-fault state. A no-fault state implies that family courts do not have the right to single out a partner as the sole cause for the dissolution of a marriage. Furthermore, it signifies the fact that the post divorce settlement of rights involving property division, child custody, child support, and visitation, would be decided fairly, irrespective of whether, either of the party was involved in an extramarital affair, or not. Despite the fact that California law follows the no-fault rule, some people still resort to spousal spying, in their quest for revealing evidence of their partner’s behavior for their own curiosity or perhaps for custody purposes.   

The limitation in spousal spying

The Californian law states that, the use of a wiretap in non-consensual recording of your spouse’s confidential telephonic conversations is regarded as illegal and akin to a criminal act. Many people tend to think that recording their partner’s phone calls without their knowledge, would be a sure shot way of gathering evidence against them. However, the law strictly prohibits an individual from recording a confidential communication without the prior knowledge of all the parties involved. 

The exception

Records of telephone calls or voicemail messages can sometimes be brought up during divorce litigation to influence the custody or visitation related settlements. Although the nonconsensual recording of phone calls can be regarded as a form of spousal spying, there have been cases wherein the evidence was taken into consideration by the court. In such exceptional cases, the recorded voicemail or calls were regarded as an influential factor in deciding custody or visitation rights.   

Generally, recordings done without the other party’s knowledge and consent are inadmissible in court because of the right to privacy, pursuant to California Penal Code section 632.  However, this rule can be overcome if (i) there was no objective expectation of privacy at the time of the recording and (ii) even if there was an expectation of privacy (which there was not), the recordings are admissible as they fall under the exception of California Penal Code sectin 633.5.

California Penal Code section 632 requires all parties to any confidential communication must give permission to be recorded, the law, however, specifically excludes from its application any conversations made in public places, government proceedings, or in circumstances where the participants of the conversation could reasonably expect to be overheard or recorded.   The test of confidentiality is an objective one, but does not depend on a reasonable expectation the contents of the communication will remain confidential to the parties.  Construction of Cal Penal Code § 632(c) calls for a determination as to:

  1. Whether the circumstances reasonably indicate that any party to such communication desires it to be confined to such parties, or
  2. Whether the circumstances are such that the parties to the communication may reasonably expect that the communication may be recorded. This determination must be made by the finder of fact. 

Even if the Court were find that there was an objective reasonable expectation of privacy under the circumstances and the videos and audio recording fall under California Penal Code section 632, the recordings would still be permissible and admissible as an exception under California Penal Code section 633.5, which states that “nothing in Section 631, 632, 632.5, 632.6, or 632.7 of the Penal Code prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Penal Code Section 653.

So, for example, if a party recorded an audio or video that depicted violence by the other party against their child that amounted to child abuse, such recordings could still be admissible despite privacy laws as the recordings were obtained for the purposes of collecting evidence of a crime involving violence against another person.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

divorce_attorneyGerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.

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