By: Curtis Wiberg
With the ease of technology making the prospect of recording phone and in-person conversations with a soon to be ex-spouse so much easier, more and more clients are presenting me with recorded conversations (whether audio or video) with their spouse for potential use as evidence in their divorce cases. A whole host of issues arise whenever this occurs.
The foremost consideration is ensuring that the recording was made legally. Colorado is one of the many states that allows for “one party consent” as an exception wiretapping criminal laws. C.R.S. § 18-9-303. What this means is that if there is one party to a conversation that consents to the recording of the conversation, then that is generally legal in Colorado. So, if you, as a party to a conversation, consent to the recording of the conversation, even if the other party is unaware that the conversation is being recorded, that is not illegal in Colorado.
Some other states, however, require “two party consent” where both parties have to consent to the recording of a conversation. So, if your spouse happens to be talking to you from a different state, recording the conversation may be a crime. Furthermore, recording a conversation between your child and the other spouse when neither is aware they are being recorded is likely illegal.
Even if recording conversations is legal in a particular instance, it may still not be a good idea. For instance, in a parenting dispute, courts are looking for parents who will support a child’s relationship with the other parent, and a parent who can get along with the other parent for the sake of a child. See, C.R.S. § 14-10-124 (1.5)(a). If a party is surreptitiously recording conversations to entrap or sting the other parent in a contrived “Gotcha” moment, then a court may very well look at a recording or batch of recordings as proof against the party making the recordings as a parent who is not acting in the best interests of their children. So, too, with a party who ambushes the other party while making a cell phone video to try to embarrass or humiliate them. Moreover, making records to bolster your custody case with the child knowing the recording is occurring can potentially backfire. Courts don’t want children involved or anything done which may make a child view the other parent in a negative fashion.
Nonetheless, there have been cases, in my experience, in which having the recording has come in handy. On occasions, I’ve had opposing parties lie on the witness stand, only for me to be able to then present a recording that exposes the lie to the court. I have also seen recordings being helpful where one party fears being accused of domestic violence and they want to record themselves leaving a situation or location peacefully. Likewise, recordings of parenting time exchanges have been helpful in cases in which there have been accusations of improper conduct during such exchanges. I once had a case, long ago, where a party was recorded purposefully injuring himself before calling the police to make a false allegation of assault. In the courtroom anecdotes discussed above, where a party was caught in a lie, the only reason the recordings were made in the first instance was when the other party made dishonest accusations against my clients, and my clients had little other recourse to protect themselves.
Even with these anecdotes, however, the “need” to video or audio record my be proof, in itself, of a high conflict divorce where a judge is as likely to form a negative opinion of both the recording and the recorded party. As a general matter, audio or video recording a spouse during an ongoing divorce is something I discourage absent a compelling reason. I do so because of the legal risks and strategic downsides that are involved. The act of recording conversations with the other party’s knowledge can escalate a conflict, when de-escalating a high conflict divorce and working with the other party to find solutions is oftentimes a much more preferable (and cheaper) course for spouses in a divorce.
It should be noted that each case is different and that what might be a good idea in one instance might not be in another. If you’re involved in a divorce and you think recording your spouse is something that you need to do to help your case or protect yourself, it is very important to consult with an attorney to go over the pros and cons of doing so.