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Privacy and Divorce: Can I record conversations between me and my spouse?

Privacy and Divorce: Can I record conversations between me and my spouse?

In most states, only one party participating in a conversation is required to give consent to record it.  This means that the initiator of a call or conversation can, in fact, legally record a conversation without informing the other person or people participating on the call know what they are doing.

So yes, it is permissible (legal) to record a conversation with your spouse without their consent in the state of Connecticut.

That said, it is not permissible (meaning, it is illegal) to record a conversation if you are not directly part the conversation and recording a conversation between third parties.  This would be nsidered illegal eavesdropping or wiretapping.

Note 1: Different standards apply to conversations between spouses versus conversations between third parties.

Note 2: Different standards also apply to the permissibility of recording conversations as it related to criminal liability versus civil liability.  To fully insulate against civil liability, it is always best to obtain consent from all parties involved.

Note 3: Different standards apply to intrastate conversations when the parties are physically speaking from different states.

The Connecticut Divorce Attorneys at Needle | Cuda; Divorce and Family Law are well-versed in Connecticut privacy laws can help evaluate and ensure that you are in compliance with applicable statues and jurisdiction and contextual nuances of your situation.

One-Party Consent States

States that allow such recordings, refer to this doctrine is referred to as “one-party consent.”   Thirty-eight (38) states and the District of Columbia allow for recordings (including those between spouses) with one-party consent (including Connecticut and New York)

This means that if you are physically taking part in a conversation in Connecticut or New York with your spouse, you can record it.  Or, if the conversation being recorded is between two third parties, consent is required from at least one of them to record that conversation. (Note that where the parties of the converation is physically taking place is core to this determiniation — are both parties physically in CT for the conversation OR, is one in CT and the other in a different state.  The standard is diffent and more nuanced when the parties are in more than one state)

That said, two-party consent is required for telephonic conversations to avoid potential civil liability, though criminal penalties do not apply if at least one party has consented to the recording

Two-Party Consent States

Eleven (11) states require “two-party consent” which mandates that all party’s privy to a conversation must provide their consent/permission before that conversation can be recorded.

States that have “Two-Party Consent” laws on the books are:  California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.

Lastly, the state of Vermont does not fall in either category, where their state legislators there have not enacted a consent law.  Accordingly, Vermont defers to Federal Law, which, in turn, applies the doctrine of one-party consent. So, the state of Vermont, by default, has a one-party consent requirement.

With respect to the eleven (11) two-party consent states, there are important differences in how or when consent applies.  For example, how (the form of consent) and when consent is “given” varies.  Some states require that consent be explicitly stated while others deem consent to be given even if it is only implied.

Recording calls across state lines

When one party on a call is in a one-party consent state and another is in a two-party consent state permissibility is more nuanced.

Some argue that a good rule of thumb is to follow the applicable law based on which state the recording device is located at the time of recording.

But, because the nitty-gritty of conflicting state statutes and determining which state law applies can become extremely nuanced (based on your particular fact pattern), others argue that “Best Practice” would be to follow and adhere to the most stringent state law.

Note however, one can never go wrong by pursuing the explicit consent from all conversation/call participants.

And, if you are ever in doubt about the legal permissibility of recording a call in a particular situation, err on the side of caution and be conservative: don’t record it.

Recording Zoom and other Video Conference Calls – New Technology

Most conference call platforms require call participant to acknowledge a conversation is being recorded when the log into the call and create a digital record of the consent.  Additionally, some phone apps have a similar process/permissions flow with prompts to take/accept consent.  In this way, technology and automation are making it a bit easier to follow the rules and to enforce/track recording consents.

That said, be extra careful and take particular note since some workflows simply offer a recorded notice that the call will be recorded as opposed documenting/logging individual consents.

Examples of the type of conversations that might typically be recorded

There are many practical reasons to record conversations and phone calls.  Having an exact record of a conversation can be very helpful in the following situations:

  • Formal Interviews (where source documentation is expected for publication/distribution and related professional rules and standards);
  • Business Meetings/Board Meetings/ Stockholder Meetings (where commitments, votes, and resolutions need to be documented for governance);
  • College Lectures (where recording a lecture and listening to it later or review a transcript can help to fill in gaps in your notes or memory)

If intending to use recordings in litigation (i.e., divorce litigation), it is strongly advised to consult an experienced attorney to evaluate your legal standing and review your back-up document so as to best advise you on the potential use and admissibility of any such recordings.  The attorneys at Needle | Cuda: Divorce and Family law are well-versed in privacy laws and advise their high-net-worth clients

Contact the Westport Connecticut Divorce Lawyers at Needle Cuda by calling 203-557-9500.




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