We often get questions about whether it is legal to record your spouse. The question we prefer to ask is whether you should record your spouse. We live in a world where technology offers many opportunities to record, photograph, and videotape our loved ones. Shared phone plans also let us track the whereabouts of our children and have access to family emails and text messages. But when parties separate in anticipation of a divorce, there is usually a new expectation of privacy. This post will explore the use of such technology during your divorce.

Texas is a state that permits audio recording of another person in very limited circumstances. However, there are some things that are absolutely prohibited by law. For instance, it can be illegal to set up a recording device in the home and record your spouse without their knowledge. This is true even if the residence is the shared marital home. Violating this law is a crime, and it can also result in civil liability. This means that even if you are not charged with a crime for recording your spouse, you can still be ordered to pay monetary penalties for violating your spouse’s privacy.

The same is true of accessing your spouse’s computers, phones, and tablets without their consent. There is often a temptation to look for that perfect piece of evidence that might prove something your spouse has done. However, accessing an electronic device can be a crime and, again, result in civil penalties. Federal law prohibits accessing someone else’s email in some circumstances. No piece of evidence is worth exposing yourself to these types of problems.

Even if you get a juicy piece of evidence by looking at your spouse’s phone, it may not be useful. A judge may decide the evidence was obtained illegally and therefore you cannot use it in court. Oftentimes, recordings are not as persuasive as a person may think. If there is an audio recording and one party knows they are being recorded, this person will always be on their best behavior. And many lawyers might be hesitant to represent a person who has illegally recorded their spouse. Using this information could expose the lawyer to potential liability as well.
The good news is that there are other legal options to obtain much of the evidence that will be useful in a divorce. Your lawyer can formally request documents, emails, photos, and financial data through a process called “discovery.” Texas law also permits the inspection of electronic devises by an expert. Although this can be cost prohibitive for some cases, it can also reveal important evidence.

Before recording your spouse, it is important to speak with a lawyer to understand what is permitted under Texas and federal law. Here at Thompson Salinas Londergan, LLP, we are here to discuss options to gather important information in divorce.

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