The emphasis in custody and divorce cases is frequently on how to gather evidence. Documented proof that your ex-spouse is doing something inappropriately or illegally is required. How are you going to do it? Can I secretly record my ex-spouse for evidence?
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Be cautious in this regard. The laws governing the collection of evidence vary according to jurisdiction. Recording your own conversation is acceptable in Michigan. It is acceptable to legally record your exchanges with your ex-spouse. To do this, you are not required to have your ex-spouse’s consent. Legally speaking, this is. It is unlawful to record a discussion between your ex-spouse and a new lover. You require specific authorization for it. When the federal government receives a warrant for wiretapping, the same thing happens. Even if you have permission, should you record your ex-spouse’s conversation? It’s important to understand that recording constitutes a privacy violation. Your ex-spouse might never communicate with you again. Recognize that consequences will result even if it is legal.
What statutes restrict recording or eavesdropping?
When considering or in the midst of a divorce, it’s not uncommon for someone to record a discussion. This is to gather proof. People can easily record voice memos on their cell phones these days. They might even record entire meetings or conversations for future reference. It is advisable to use some caution when doing so. A phone call may be recorded if one side agrees to the audio recording of the conversation. The Michigan eavesdropping law could be broken if audio recording is forbidden.
What if you transcribed a chat with your partner or other people? In discussing eavesdropping issues it is important to take into account two key laws. The Federal Wiretapping Act and the Michigan Eavesdropping Statute.
The Federal Wiretapping Act
The Federal Wiretapping Act forbids the interception of communication. It forbids intercepting any wire, oral, or electronic communication. Records or interceptions collected unlawfully cannot be used as evidence in any legal process. The law provides for attorney fees and civil damages. According to the Federal Wiretapping Act, recording a conversation is prohibited. The Act stipulates that it is acceptable to record a conversation if you are a participant in it.
Michigan Eavesdropping Statute
The Michigan Eavesdropping Statute forbids anybody from recording. It forbids amplifying or transmitting any portion of another person’s private conversation. It forbids doing so without the consent of all parties involved. It is important to consider the Michigan Wiretapping Law. It is illegal to “use any device to eavesdrop upon a conversation without the consent of all parties.” To record a conversation where you are not a participant, you must have the consent of the other participants. Laws on eavesdropping can differ across state boundaries. It is best to be safe and get everyone’s consent. This is if you plan to record conversations. Especially conversations involving people who are situated in different states. Using any “device” to “eavesdrop” is prohibited. To overhear, record, magnify, or transmit a conversation without the consent of all participants is a felony. It is punishable by up to two years in prison and $2,000 in fines, according to Michigan’s Eavesdropping law. It is also a crime for someone to “use or divulge” any data they are aware was obtained through illicit listening. This means that, in some cases, using your phone to record conversations may be illegal.
Getting evidence for your divorce case is necessary. Doing so can be against the law, so you should think carefully before doing it. If you are a party to the conversation, it is acceptable to record it. Be cautious if you are not participating in the discourse.
What cases laid the foundation for allowing the recording of conversations?
Michigan courts have consistently recognized a crucial exception to the state’s eavesdropping law. The recordings of your discussions are exempt from this rule. Only “other” people’s” discussions are covered by the letter of the law. This is good news for anyone casually recording their meetings or conversations. You are free to record conversations if you are an active participant. Even if no one else permits you to do so. Participant recording is excluded from the notion of eavesdropping in the statutory text. It was limiting the subject conversation to “the private discourse of others.” This was the court’s statement in the published decision of Sullivan v. Gray. The decision appeared to resolve this issue back in 1982. This view of the law has received multiple affirmations from the Court of Appeals. Sullivan v. Gray has never been overruled by the Michigan Supreme Court. The participant exception has not been repealed by the Michigan Legislature.
In 2019, a federal judge in Michigan cast some doubt on the above application. This long-standing application of the state’s eavesdropping law. Citing a judge for the federal district court for the Eastern District of Michigan. The judge took an unexpected decision. It chose not to accept a published decision of the Michigan Court of Appeals. The decision on a Michigan law issue that had been resolved for almost 40 years in AFT Michigan v. Project Veritas. The lower Appeals Court never addressed the participant exception to the eavesdropping law. It was only required to accept rulings made by the Michigan Supreme Court. The Michigan Legislature had not intended to exclude participants from the Act. This is from the AFT court’s examination of the statutory text. As a result, the AFT court decided against following Sullivan. The court instead certified the issue of statutory interpretation. The court left it to the Michigan Supreme Court for resolution. It gave the latter the option of finally resolving the matter if it so desired.
We cite a different federal judge in the Eastern District of Michigan. The judge disagreed with the court in AFT. The judge chose to follow Sullivan. It upheld that a participant in a conversation was incapable of violating the eavesdropping statute. The decision was handed down shortly after AFT was decided. The certified question from AFT was not yet the subject of any action by the Michigan Supreme Court. The Fisher court reasoned that the weight of the evidence points to the Michigan Supreme Court’s decision in Sullivan. It is supported by the same findings as those reached by the Court of Appeals.
The Fisher court noted that the Federal Sixth Circuit Court of Appeals also continues to follow Sullivan. This is true even while the certified question from AFT was still pending before the Michigan Supreme Court. The Court of Appeals has repeatedly upheld Sullivan (including in the publicly available case of Lewis v. LeGrow. The Michigan Supreme Court publicly failed to respond to the AFT court’s certified question in May 2021.
Can you secretly record your ex-spouse for evidence?
When they expect a divorce or custody dispute, parties often audio or video record. But is that acceptable? Will it be useful to record conversations, even if Michigan law permits it? Your spouse may be verbally abusive. You worry that they might tell a falsehood to the judge. You might be tempted to film them while you get ready for your divorce. It is not always acceptable to surreptitiously record your spouse.
You might think that recording a conversation with your spouse may be helpful. Before you do so, speak with your attorney beforehand to determine whether it is legal for you to do so. Recording may be prohibited in your circumstances. You run the possibility of facing felony charges. More importantly, not all that is permitted is helpful. The conflict may logically worsen. Your partner will learn that you are recording conversations. Your children suffer. There will be increasing conflict. The judge will probably view you negatively. You are the one who is contributing to the escalating acrimony.
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