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Can I Use Recordings of My Spouse as Evidence in a Divorce?

BY IN Custody

Parties often audio or video record when they anticipate a divorce or custody dispute.  But is that allowed?  And even if Michigan law allows you to record conversations, will it be beneficial?  Our Grand Rapids divorce lawyers are here to provide you with answers. 

What is Michigan’s Law on Recording Your Spouse? 

Under certain circumstances, but not always, when both parties are in Michigan, and one party consents to the recording of a phone call, a call may be audio recorded.  When audio recording is not allowed, you might violate the Michigan eavesdropping statute. For example, you may not record a conversation between two other people when you are not a participant, and you may not record a conversation with people who are in another state.  

If you believe that you will benefit from recording a conversation with a partner, start with a conversation with your attorney to see if it is permissible in your situation. There is a risk that recording is not allowed in your situation, in which case you may be charged with a felony.

More importantly, not everything permissible is beneficial.  Logically, when your spouse finds out that you are recording calls, the conflict will escalate. The increased conflict harms your children, and if you are causing increased conflict, the judge will likely hold that against you. 

Of course, people usually plan to record secretly.  However, in our decades of representing clients in divorce and custody disputes, we see that those secret recordings often do not remain a secret.  The other spouse or parent was snooping around and found them; the former partner noticed that he or she was being recorded, and sometimes the children find the recordings left on a mobile device, or the recordings are carelessly left visible on a phone or computer.

Additionally, during the divorce or custody proceedings, attorneys often request a party to produce “all” audio and video recordings. Settlement negotiations tend to break down when a spouse or parent finds out that their conversations or fights were recorded. 

Will a Recording Help Me Prevail in My Family Law Matter? 

An audio or video recording is often not as beneficial as the client expects it to be.  A custody evaluation expert or the judge presumes that the recording is a ‘set up.’  The recording spouse or parent often appears reasonable, gentle, loving, and near-perfect on the recording because they know that they may use this recording in court.  The lack of integrity could outweigh the benefit.

Even when your audio recording may be beneficial, you will still need to comply with the Rules of Evidence to have this evidence admitted at trial.

On the other hand, there are multiple scenarios when recordings are beneficial and worth the risk of increased conflict. For example, if you have been falsely accused of domestic violence or other abuse, a recording may prevent criminal charges.  We’ve represented clients where the opposing party provided an affidavit with facts, and the audio recording provided proof of perjury.  Such a recording can be beneficial during trial. 

If you think you will benefit from recording a conversation, you should start with a conversation with an attorney.  A contentious divorce or custody case warrants excellent representation, and we will gladly have that conversation with you. Give us a call at 616-285-0808 to discuss your divorce or custody situation with our experience Grand Rapids family law attorneys.