You May Want to Think Twice before Recording Your Spouse's Phone Conversations

It is not uncommon for a couple going through hard times or a divorce to consider bugging their partner’s phone. After all, who doesn’t want to catch a piece of incriminating evidence for their divorce case, maybe your spouse is talking to the “other” man or woman and you’d like to use this as fault-based grounds for your divorce. However, you may want to think twice about bugging your spouse’s phone or secretly recording their phone conversations.

woman talking on a cell phone

Under Virginia law, it is a crime to record any “wire, oral, or electronic communication” unless one of the parties to the communication consents to the recording. Typically, this means that you must be a party to the conversation in order to record any communications and even then, you must be careful not to overstep the law. Every state has different laws for recording conversations. For example, you may be in Virginia or Washington, D.C., but if the person on the other end of the line is in a different state, that state’s laws might apply.

Virginia law provides an expectation of privacy. This means that the law covers oral communications when the speakers have an “expectation that such communication is not subject to interception under circumstances justifying such expectations.” For instance, conversations that occur in a public place or place where others can hear you (or the other person) may not be entitled to protection because there is no expectation of privacy. The determination of whether a conversation is one deserving of privacy depends on the circumstances surrounding the communication.

However, a person who “[i]ntentionally intercepts, endeavors to intercept […] any wire, electronic or oral communication” may be found guilty of a Class 6 Felony, punishable by fines and imprisonment. See Virginia Code § 18.2-10(f).

Similarly, there are also civil remedies for the unlawful interception of communications, such as actual damages, punitive damages, and attorney’s fees and costs. See Virginia Code § 19.2-69.

For these reasons, while it may seem desirable to tap your spouse’s phone calls or record these conversations, you may want to refrain from doing so. Not only will this evidence be inadmissible in court, you could face criminal and/or civil penalties for doing so. Before recording any conversations in you divorce or family law case, you should speak with your family law attorney. Your attorney can advise you on the legality of recording such conversations, and will be able to obtain useful and admissible evidence for your case that will not land you behind bars.

If you need assistance with your divorce case or any other family law issue, contact our experienced DiPietro Domestic Relations Law Attorneys today at (888) 530-4374 to schedule a consultation. We can provide compassionate, strategic help throughout the process and give you back peace of mind and the strength to rebound from your crisis.

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