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The Legalities of Recording Your Spouse during a Virginia Divorce

recording spouse during divorce

Getting divorced is a stressful experience under any circumstances, and this is especially true when both spouses have no other practical option but to share the same residence while going through the proceedings. Those who are involved in a contentious divorce are sometimes tempted to make recordings of their spouse in an effort to discredit them and gain the upper hand.

Although this type of behavior may seem petty, the evidence obtained by recording a spouse could potentially be damaging to them. For the spouse who is being recorded, what is said could negatively impact various aspects of the proceeding, such as child custody, visitation, and alimony. Knowing this, it is understandable that a spouse might want to gain an advantage by making a recording.

Whether or not you should record your spouse during a divorce proceeding is open to debate, but before you address that question, you need to find out if you can legally do this in the Commonwealth of Virginia. The answer is – it depends. And this question is further complicated by the question of admissibility, that is whether or not the recording would even be admissible in your case.

If you are thinking about getting divorced, it pays to have strong legal counsel by your side to provide advice on questions such as whether to record your spouse and what to do if you believe you are being recorded. Before too much time passes, give our office a call at (434) 977-7977 to discuss your situation.

Virginia Laws on Recording Spouses During a Divorce

Virginia is a “one party” state, which means you are allowed to record a conversation as long as one of the participants consents to the recording. So, if you and your spouse are having a conversation, you can legally record it because you are a participant and you consent to it.

What you are not allowed to do is record a conversation between your spouse and another party without obtaining the consent of at least one of the two participants involved. So, let’s say that one of your spouse’s friends is coming over to visit with them. You decide to leave the house, but you place a secret device somewhere in your home to record conversations when you are gone.

Or let’s say you suspect that your spouse is seeing someone else. So, you decide to put a recording device in their car in hopes of documenting any conversations they are having with the other person if/when they get into the vehicle.

In both of these situations, recording your spouse would not be legal, because you failed to obtain the permission of any of the participants of the conversation. Although you may be able to get some juicy information by doing this, keep in mind that breaking the law in this way has potentially severe consequences.

There are other means of spying on a spouse that may or may not be legal depending on the situation. For example, making a video recording of them in a private setting would likely be a violation of privacy laws. However, you are allowed to record your spouse (or anyone else for that matter) in a public place where there would be no expectation of privacy. Speak with your attorney if you have further questions about when and in what situations you may be legally allowed to spy on your spouse.

Admissibility of Recordings in a Virginia Divorce

The question of should you record your spouse during a divorce proceeding brings up a related question of whether or not such recordings would be admissible in a court anyway. There are some instances in which recordings would be admissible, but in other instances, they would not be.

The main factor in determining admissibility is whether or not your spouse was aware that he/she was being recorded. According to Virginia Code § 8.01-420.2:

No mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage.

The statute that addresses this point is clear. If your spouse knew that he/she was being recorded, then the recording might be admissible. But if they did not know, then such a recording cannot be used during a divorce or similar proceeding.

One final point. Even if a recording of your spouse is both legal and admissible, you still have to deal with the question of whether it is worth doing. Will a recording (that they have to know about in advance for it to be admissible) provide anything worthwhile to bolster your case? In addition, is it worth the added conflict and strife that an action like this might trigger?

Contact Our Experienced Charlottesville, VA Divorce Lawyers Today

Going through a divorce can be stressful and emotionally taxing, and it is easy for spouses in this situation to exercise poor judgment and do things that they might later regret. This is one of many reasons why it is good to have someone who is outside your situation whom you can rely on to give you proper guidance.

If you are in the Charlottesville, VA area, call Buck, Toscano & Terezkerz today at (434) 977-7977 or message us online to speak with one of our knowledgeable and compassionate divorce attorneys. We look forward to serving you!

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