Should You Record Conversations with Your Co-Parent or Soon-to-Be Ex-Spouse?

Depending on the circumstances, recordings can be helpful to your divorce or custody case. For example, if your spouse has serious substance abuse problems that impact parenting ability, a recording that documents such problems could constitute powerful evidence to a judge. The recording could also convince your spouse or co-parent to settle out-of-court.

However, there are pitfalls and risks to consider. It’s critical you work with your attorney to develop a comprehensive strategy for your case and that you thoroughly discuss actions such as recording conversations ahead of time.

Moreover, depending on the jurisdiction, your secret recording could violate the law. The laws vary in the DMV area on this issue:

• In D.C., if one party to the communication consents to the recording, then it’s legal. D.C. Code § 23-542(b)(3) (“It shall not be unlawful … for a person … to intercept a wire or oral communication, where such person is a party to the communication ….”). D.C. is known as a “one-party consent” jurisdiction; that is, only one party needs to consent to the recording.
• Virginia is also a one-party consent jurisdiction. Va. Code Ann. § 19.2-62(B)(2) (“It shall not be a criminal offense … for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication ….”).
• Maryland, however, is a “two-party consent” jurisdiction. In Maryland, all parties to the communication must have consented to the recording.  Md. Code Ann., Cts. & Jud. Proc. § 10-402(c)(3) (“It is lawful … for a person to intercept a wire, oral, or electronic communication where the person is a party to the communication and where all of the parties to the communication have given prior consent to the interception ….”).

In considering whether to secretly record your co-parent or spouse, you need to educate yourself about whether the recording would be lawful, and whether it would be consistent with the overall strategy you and your attorney have developed to address your unique situation.