–by Sam Darling, Divorce attorney at Genesis Law Firm
Can I use a recording of my spouse in my Washington divorce?
Generally no, though there are many exceptions. Washington is a “two-party consent” state, meaning you need the speaker’s permission to record a private conversation. The applicable statute – RCW 9.73.030 – makes most types of audio recordings illegal. In turn, RCW 9.73.050 bans courts from admitting these illegal recordings as evidence in criminal and civil cases, including divorces and other types of custody battles.
The following are common exceptions to these rules:
1) Video Recordings. The primary rules banning recordings as evidence – RCW 9.73.030 and .050 – do not apply to video. Surveillance video is usually admissible in a divorce so long as it is relevant. Arguably so are most cell-phone-video recordings if the sound is turned off. If your spouse throws a tantrum in front of Walmart’s security cameras, get the footage. Or if you spouse is hallucinating on meth, make a video-only recording.
But do not assume you can get away with putting a camera in places you intuitively know you should not, such as in a bathroom or changing area. Someone might turn around and sue you for invasion of privacy. Unreasonably monitoring your spouse could also be construed as stalking. Put simply, nearly all relevant video recordings are admissible as evidence in your divorce, but you might pay a steep price for the evidence if you violate commonsense rules of propriety.
2) Guardian ad Litem. A Guardian ad Litem (GAL) is someone appointed by the court to investigate child custody-related matters and report back to the court. Judges usually follow GAL recommendations, and GALs often consider inadmissible evidence when formulating their custody recommendations to the court. If you have an illegal audio recording of your spouse saying something relevant to your custody battle, you might consider requesting a GAL investigation. GALs are not always beneficial however. To determine whether one is right for you, watch Genesis Law Firm’s free video entitled Guardian ad Litem: Do I want One for My Child Custody Case?
3) No Reasonable Expectation of Privacy. The rules prohibiting audio recording apply to “private communications” only. Notably, most one-on-one communications are deemed private even if a recording device is visible. A communication is NOT private if a) the two of you are speaking in loud voices in public, b) you state on the audio recording that you are about to begin recording the conversation, c) you are communicating in a group setting, or d) your spouse intentionally left the audio communication on a recording device, such as an answering machine.
If you want to make an audio recording, the safest bet is to say “I’m recording this conversation” at the beginning of the recording.
4) Harassing Communications. The statute prohibiting unilateral audio recordings explicitly exempts the recording of “communications . . . which occur . . . repeatedly or at an extremely inconvenient hour”. If your spouse is harassing you late at night, feel free to take out your recording device and leave on the sound.
5) Illegal Threats. Similarly, the two-party consent statute exempts audio recordings of “communications . . . which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.” Do not hesitate to secretly record your spouse if he or she is making illegal threats or demands, such as threatening to kill or hurt you or your family.