Divorce Wisdom: Secretly Tape Recording Your Spouse…Is It Even Legal?

At times, I receive calls from clients wherein they confide in me that they are afraid their spouse might lie and claim they are physically abusive in order to get them removed from the marital home during the pendency of a divorce. Typically, both parties have a right to continue to live in their residence during a divorce proceeding. The exception of this rule is when one spouse has physically assaulted their partner and the police remove the offending party from the residence.

When I have a client that is living in constant fear of being falsely accused of domestic violence, my preference is to separate the parties. Unfortunately, when the custody of children is involved, or the couples’ economic situation does not allow for a separation during the divorce process, couples may be forced to live together until their divorce is finalized.

While there certainly are many people who need police and Court protection to ensure they are safe from physical abuse, it is sadly not uncommon for a person to falsely claim they have been abused by their spouse to gain an unfair advantage in their divorce. So, what can you do if your spouse is “crying wolf” to friends, family and the police, claiming you are a batterer when you are not?
In the above-mentioned scenario, some attorneys advise their clients to carry a voice activated tape recorder, so that the client can capture “the truth on tape” to ensure that a false accusation of abuse may be countered with the recorded truth. In extreme cases, a tape recording, recorded without your spouse’s knowledge and consent, might provide you with the piece of evidence you need to expose your spouse for the liar he/she is. But, is it legal to tape record a conversation when the other conversant does not know he/she is being taped?

In the State of Michigan, secretly tape recording and disseminating a conversation is a felony that is punishable by up to 2 years in prison and up to $2,000.00 in fines, even if you are a party to the conversation. If you are secretly recording your spouse during a fight for instance, with the intent to utilize the recording, your actions are illegal because you are violating your husband’s/wife’s right to his/her reasonable expectation of privacy. Therefore, if you have been advised to protect yourself by carrying a voice activated device to record your conversation with your spouse, (in Michigan or a state with a similar law) make sure you let your spouse know LOUD AND CLEAR that you are tape recording the conversation. This statement should be the first thing that is picked up by your recording device.

Sometimes both parties’ knowledge of the fact that their verbal communications are being recorded forces both husband and wife to act more civil toward one another while they continue to share their home.

Bottom line, the use of a tape recorder to protect against being falsely accused of abuse is extreme and should only be used in the most high conflict situations, and of course only when your spouse is aware of the fact that he/she is being taped.

NOTE: Different states have different laws on the secret tape recording of a conversation. Therefore, make sure you know the laws of your state before you secretly tape your spouse.