The Legality of Recordings in a Divorce Case

Recording family events and interactions may be all in good fun, but when one spouse starts recording another without his or her knowledge or consent, there can be major implications. 

Many people considering or going through a divorce ask whether they can make or use recordings, either audio or visual, as evidence in their case.  These recordings can be useful. With the advancement of technology, however, the question of whether these recordings are legal is increasingly more complicated.   

Connecticut law prohibits unlawful wiretapping or the mechanical overhearing of a conversation.  Put another way, Connecticut law prohibits the recording of a telephone call without the consent of at least one party. Therefore, if you have a feeling that your spouse may make a damning admission during one of your phone calls, like he does not want the children as much as he is claiming to want them to the court, and you want to record the phone call, it is permissible.  If, however, you want to record a conversation between your spouse and his or her lover to prove your spouse is cheating, such a recording would be illegal because both parties to the call are unaware of the recording and did not consent to being recorded. Illegally recorded phone calls cannot be used in court.

When it comes to video recordings, the circumstances are a bit different. Connecticut law prohibits audio and visual recordings of another person without his or her consent if that individual has a reasonable expectation of privacy in the recorded area. This means that cameras in the bedroom or bathroom are likely off limits.  Recording an unknowing spouse in the common areas of the house, during pick ups or drops with the children, or in a public place, for example, is acceptable.  Video recordings may be useful and often the best form of protection in cases where one spouse is concerned the other may make false allegations, especially false allegations of domestic abuse. 

Whether these recordings are disclosable during a divorce case may depend upon the circumstances in which they were made. Recordings made pursuant to the advice of a lawyer are likely to be protected and not disclosable to the other spouse. Recordings made without a lawyer’s advice are likely to be disclosable if the other side requests them. 

Clients frequently ask the lawyers at Ferro, Battey & Eucalitto, LLC whether recordings can be used in their case.  In addition, the lawyers at Ferro, Battey & Eucalitto, LLC often advise their clients on whether to make recordings and in which ways these recordings can be strategically used in their case. For more information on this topic, including questions about making or using recordings in your case, contact Ferro, Battey & Eucalitto, LLC.