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Video and Audio Recordings in Divorce

Contentious divorces can often involve a lot of “he said she said” situations. One partner may accuse the other of being abusive. In some cases, these allegations, even if true, might prove difficult to prove. In other scenarios, a spouse may believe he or she can gain an advantage in the litigation by claiming the other person is abusive, even if it is not true.

One thing people may think would add credibility to their claim is to record their partner behaving in an abusive manner. This, however, is problematic. California law prevents people from making many types of covert recordings of conversations. Under California law, all participants of a recorded communication must consent to the recording with exception to situations where communication is not intended to be confidential (communications where the parties may reasonable expect the communication may be overheard or recorded). While you might think you are willing to risk making an unlawful recording just to get meaningful evidence for your divorce, your recording will likely not be allowed in court.

Recording Someone Without their Consent Could Be Considered a Criminal Violation

If you think you can be really clever and record your spouse while they yell and shout angry abusive language at you or the children, keep in mind, you maybe actually committing a crime by making that recording. Of course, few people are ever charged with a criminal offense for taking this sort of action in their divorce, but it’s best not break the law, especially because it might not even help your case.

Your Recording May Not be Heard

If you present illegally obtained evidence of your spouse’s behavior, the court will likely not allow you to present that evidence. You might have a great example of your spouse screaming their head off, but it will do you no good at all because the judge will not listen, and it might work against you because the judge will see that you were willing to break the law.

Adding to the problem, many people in family law are familiar with the way one party might manipulate another party and use manufactured evidence to make the other person appear bad. There are times when one spouse may instigate a fight and relentlessly provoke a spouse with threats or insults and then turn on the recording device to capture the response. The out of context reaction might make the person look terrible, but it is clearly not a fair representation of what transpired.

You Might Get a Transcript Heard

One way your illegal recording could impact the courtroom is through a transcript, but only under limited circumstances. In California, while the recording might not be heard, if your spouse offers testimony that contradicts the recording, you might be able to show that they were untruthful by presenting a transcript of what was said. The actual transcript however is often less compelling evidence than a recording that shows the tone of voice.

If you are divorcing an abusive partner, the law offers protections. It is possible to get restraining orders or orders of protection that can prevent the abuser from contacting you. For these adusive situations, the court can still grant orders based on written declarations and other supporting evidence.

If you have questions or are unsure of how to proceed, contact Milligan, Beswick, Levine & Knox, LLP today at 909-798-3300 for a free consultation with one of our experienced family law attorneys.

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