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Can my spouse secretly record me to build their divorce case?

On Behalf of | Jul 27, 2022 | Divorce

Divorces can turn ugly after just a single confrontation between spouses. In fact, your spouse could try to employ underhanded tricks before you even realize that they want to end the marriage.

Although California does allow for no-fault divorces that do not require evidence of misconduct, some people still want to paint their spouse as the bad guy in an upcoming divorce. They might instigate fights or even record phone calls to which they are not a party as a means of proving misconduct like infidelity or a misuse of marital assets.

Do you have to worry about your spouse secretly recording you to build a case against you in divorce court?

California is a two-party consent state

Every state has its own rules when it comes to divorce proceedings and the right to record conversations or interactions with others. There are plenty of states that are one-party consent states, meaning that someone involved in a conversation or telephone call can record it even without providing notice to the other party.

California is not one of those states. California has a clear two-party consent recording law. Everyone involved in a conversation, interaction, video chat or phone call has to be aware of someone recording and give their consent. Otherwise, the act of recording private communications or conversations is a criminal act.

If your ex tries to present the family courts with numerous recorded phone calls that you never knew they recorded, their violations of your rights may be more concerning to the courts than anything you said during those conversations.

Evidence of misconduct often isn’t necessary

With the exception of cases where someone wants to trigger an adultery clause in their prenuptial contract or prove intentional wasteful spending, there are few benefits to recording conversations for the purpose of divorce court.

The judge hearing the case will care less about allegations of misconduct and more about appropriately interpreting state law to divide your property, financial obligations and parental responsibilities. Understanding what people can and cannot do in the days leading up to your hearing in divorce court can help you feel more confident about the end of your marriage.