Recording Arguments With Your Spouse

Clients in high conflict divorce cases sometimes record their arguments and interaction with their spouse. I am often asked is it "legal" to do so or the reverse which is I think my spouse is secretly taping me are they allowed to do that. The general answer in NY is that you may record conversations in which you are a participant but cannot secretly record conversations where your presence is unknown.

So a spouse may have a recorder in their pocket when arguing with the other party. They cannot secretly record phone calls that they are not on the phone to participate in. If a client tells me that they secretly are recording their spouse on the phone with other people, I tell them that they must stop immediately.

Clients who feel the need to record their conversations are usually doing so:

a. to protect themselves from false allegations; or

b. to try to prove that the other person is making threats or harassing them; or

c. to try to secretly get an admission on tape.

More often than not, but not always, the recordings are of poor quality and more significantly do not PROVE what they are claiming. I have heard countless recordings brought in by clients that are nothing more than the person doing the recording trying to manipulate a conversation or instigate an argument. It is very easy to hear when someone is trying to entrap the other person.

On the other hand, there are clients who get threats on tape and with the tape can often obtain an order of protection because the issue of "he said, she said" can now be determined. Verbal threats of domestic violence are difficult to prove in the absence of a witness or a recording.

Recently, I had a client record his conversation with his wife. The wife was claiming that the husband took her jewelry. The husband recorded her acknowledging that she took the jewelry to her mother's house. That recording did the trick.

When in doubt call my office to discuss this sensitive issue. Recordings made illegally are crimes. Clear, lawful recordings can sometimes make the difference.