The Risks of Recording: Why Eavesdropping Won’t Help Your Divorce Case

By Guest Blogger:  Gregory C. Maksimuk

In a day and age when communications can be easily intercepted or recorded, it is important to be aware that doing so could expose you to criminal and/or civil liability. The Illinois eavesdropping laws, 720 ILCS 5/14-1 et. seq., prohibit a person from intentionally using any device to hear, record, intercept, retain or transcribe, oral or electronic communication.  Generally, the only exception is if it is done with the consent of all parties involved in the communication.  There are other exceptions to this general rule, but they usually don’t apply to most communications between spouses and/or their kids.  The Federal eavesdropping laws, 18 U.S.C. § 2510 et. seq., generally prohibit the same conduct and have similar exceptions.

Sometimes a spouse will consider recording information as a way to help his or her case. This is a bad idea.  Under both Illinois and Federal eavesdropping laws a spouse cannot: 1) record a telephone conversation with the other spouse or conversation between the other spouse and a child; 2) record in-person communication with the other spouse or communication between the other spouse and a child; 3) use key logging software to obtain passwords in order to check emails or obtain the content of emails; 4) use software to take computer screen captures of emails, or 5) use software to intercept emails, among other things.

A first violation of the Illinois eavesdropping laws is a class 4 felony and the second violation is a class 3 felony.  In addition, the eavesdropping laws create a separate civil cause of action for injunctive relief and damages, including punitive damages, and any information obtained in violation of the eavesdropping laws is generally not admissible anyway.  The Federal eavesdropping laws provide similar criminal and civil penalties.  An attorney who uses information obtained in violation of those statutes could also be subject to the same penalties.

During a divorce, you may think that recording conversations with your spouse or between your spouse and child will provide helpful evidence for your case. Recording conversations without your spouse’s knowledge, however, is considered illegal eavesdropping and the penalties for doing so greatly outweigh the benefits, if any exist in the first place.  After all, evidence obtained through improper recording cannot even be used.  Even though it may be easy to acquire recording devices or software, resist the temptation.  If you do not have express consent, don’t record conversations and don’t improperly obtain copies of your spouse’s emails.

About Gregory C. Maksimuk: Gregory is an attorney with the Peskind Law Firm and concentrates his practice on complex matrimonial litigation, which has been his exclusive area of practice for the past five years. At the trial court level, he conducts trials, argues motions, negotiates settlements and prepares related documents in addition to the many other aspects of family law litigation. His work also involves appellate advocacy including writing appellate briefs and arguing before the appellate court. He has been recognized as one of the top up-and-coming family law attorneys in Illinois.