Is it legal to videotape my spouse behaving badly (verbal or physical abuse, infidelity, etc) as evidence in a divorce case?

As thoughts turn towards divorce, tempers can flare and people may behave in ways they normally would not be proud of, even in a relatively amicable situation. Of course, the bad behavior of a spouse—ranging from neglect of household duties to infidelity to abusive actions—may well have begun long before the divorce, and may well be the reason for it.

In seeking a favorable divorce settlement, one that compensates you for violations of the marriage contract and shields you from your spouse’s ongoing bad behavior, you will want to have evidence to bolster your claims. In a world of smart phones, where everyone has both a video camera and a broadcasting station in their pockets, you may be tempted to record your spouse’s bad behavior.

While many states have “two-party consent” laws, meaning that both (or all) people on a recording must know they are being recorded and consent to it, in Rhode Island, only one person needs to consent to the taping. This is known as a “one-party” state. So you should be ok, taping your spouse so long as you are a party to the conversation.

If however, you tape your spouse secretly, or without their knowledge, and you are not a party to the conversation, then you may be violating the law. Penalties for violating the law can be quite severe. Please also keep in mind that you may be violating Federal Laws regarding “wiretapping” is you do so between states. For instance placing a GPS device on your spouse’s car, then using it to follow them into an adjacent state like Massachusetts. This scenario, may also violate RI laws if you are no a legal owner of the vehicle.

Given that the penalties for an illegal recording are so severe, and that a family law court will not look favorably on “spying” against a spouse, it is safest not to record your spouse at all. Separate from the strict penalties that follow from the wiretapping statute, there are other complex legal issues involved, including marital privilege that protects communications between spouses.

As in all family law matters, it is best to consult with a lawyer about gathering evidence of your spouse’s ill-treatment of you. Call our office today to set up an appointment with one of our highly qualified family law attorneys.