California is known as a “no-fault” divorce state, meaning that, by default, dissolving the marriage does not require proof of wrongdoing. Despite this, some individuals seeking certain outcomes from their divorce may seek to submit evidence to help bolster their claims in court.
Not all items obtained throughout an individual’s attempt to get a divorce or marriage dissolution are admissible in California family court. Individuals wanting to submit any materials to a California family court should know what can and cannot be considered legitimate evidence – this includes recordings.
If you’re looking to see if a recording you have obtained is admissible in a California divorce court, read on and consider speaking with a Los Angeles divorce attorney.
One-Party and Two-Party Consent Laws
Across the United States, there are two main standards for determining recording admissibility on the grounds of how the recording was obtained. These grounds of admissibility depend on the idea of given consent.
Federal Requirements for Consent
Federal statute requires all recordings to be conducted with a minimum of the active consent of one of the parties in the recording, which is defined as one-party consent. All recordings made by a third party who is not involved in the conversation (and who is not the interviewer, mediator or otherwise not directly involved in the conversation) are illegal by federal law. An example of this would be wiretapping a phone or installing a bug in someone’s car.
A violation of the Federal Wiretap Act could result in up to five years of jail time and/or a fine. This one-party consent statute serves as the model of most other state legislatures’ communication interception acts.
The Two-Party Consent States
Most of the states in the United States are one-party consent states, except for the following 15 states that require consent from all parties involved in a conversation in at least some circumstances:
- New Hampshire
How does California being a Two-Party Consent State Affect my Divorce Evidence?
The California Supreme Court designated a confidential conversation “as one in which the parties have a reasonable expectation that no one is listening in or eavesdropping.”
Therefore, if you have obtained or made a recording without the consent of all the individuals involved, not only is that evidence inadmissible in family court in California, but it is also a crime.
Penalties Associated with Recording a Confidential Conversation without Proper Consent
You can receive criminal charges if you have been found to be secretly recording another person in California. Depending upon the severity, this could be a misdemeanor or felony.
The punishment stemming from recording a confidential conversation in California is:
- Up to a year in prison
- A $2,500 Fine
- Civil damages awarded to the recorded party
- Community service
At the end of the day, trying to submit an illegally recorded conversation as evidence in a California divorce case is ill-advised and could create more problems than it solves.