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Illegal Recordings During a Divorce

On Behalf of | Apr 11, 2019 | Divorce

Do you need to be cautious about illegal recordings during a divorce case?  We are often asked about recorded conversations during any divorce proceeding.  Today’s technology and smart phones make it easy to record conversations.  Many think this will be helpful in the context of a divorce.  Is it legal to record a conversation with your ex-spouse and use the information against them in child custody or community property division?

The short answer is: No, not without gaining their expressed permission to record at the beginning of the conversation.  California has strict laws concerning privacy and the recording of conversations.  The “Invasion of Privacy Act” makes it illegal for anyone to monitor or record a “confidential conversation.”  This includes a telephone conversation between the parties.  Recordings are not allowed unless all parties to the conversation agree to allow the conversation to be recorded.

California law also makes it clear that these recordings must be produced during the discovery process.  The failure to disclose them can lead to harsh financial sanctions in your divorce.  This form of evidence is not admissible on its face.  However, it is possible to use these types of recordings to rebut the testimony of a witness.  The California Appellate Courts have noted that it is not legal for a testifying witness to use the Privacy Act as a shield in order to perjure themselves.

You should be very cautious about illegal recordings during a divorce case here in North County San Diego.  There are criminal and civil penalties associated with secret recordings, and you should consult with our experienced Certified Specialists in Family Law prior to attempting any such strategy.  The experienced divorce attorneys at Burke & Domercq have extensive trial expertise and will provide guidance in these complex situations.