Is it Legal to Use Recordings Without Consent in a High Conflict Virginia Divorce?

Clients regularly ask us what the consequences are of using recorded conversations during litigation. Sometimes, they are victims to a negative recording of them that is being used as evidence in a divorce, child support, or protective order case. One spouse trying to catch the other spouse in a negative light may seem petty, but it’s one of the most common occurrences in a high conflict Virginia divorce.

High Conflict Virginia Divorce

Divorce is already an inherently high-emotional situation; especially when both parties have no choice but to share the same common spaces throughout the process. The bitterness and resentment in a high conflict Virginia divorce drives one spouse (or maybe even both) to gather as much inculpatory evidence as possible. In a hasty attempt to speed up a divorce, it’s extremely tempting to want to discredit the other spouse and paint them in a negative light.

When reconciliation is no longer a viable option, it’s important to consider the possibility of a cellphone or a voice recorder possibly being used to show you in an unfavorable light. Especially when dealing with a high conflict Virginia divorce. During the past couple of decades, there has been a technological revolution and there are many gadgets that make it very easy to slip in cameras or phones anywhere to record secretly. However, are those recordings that you are either unaware of or have not given consent to admissible in court?

Code of Virginia: Limitation on the Use of Recorded Conversations as Evidence

There are two codes that specifically deal with the use of recorded conversations:

1. § 19.2-62. Interception, disclosure, etc., of wire, electronic or oral communications unlawful; penalties; exceptions.

2. § 8.01-420.2. Limitation on use of recorded conversations as evidence.

The first section from the Code of Virginia regulates oral communications. The state of Virginia is a one-party consent state. This essentially means that permission to record only needs to come from one of the parties participating in the conversations. So yes – they don’t need your consent to record you.

The second section from the Code of Virginia sets limitations on the types of evidence that will be allowed in court and references § 19.2-62. This section of the Code of Virginia states that recorded conversations may be admitted into civil trial if all parties are aware that the conversation was being recorded (notice was given in the beginning of the recorded conversations) or if the basis of the civil proceeding involves criminal conduct. So, once again, yes – the conversation they have with you, even without your consent, can be admitted into evidence; however, there are some specifications to pay attention to:

  1. If you plan on using the recorded conversation as evidence, you must let the other party know that you are recording him/her.
  2. Even if all parties to the recorded conversation knew that their conversations were being recorded, the proceeding in which the communications may be used as evidence must not be one for divorce annulment or spousal support.
  3. The Code Section does not apply to emergency reporting systems or calls to the police, fire, or other emergency personnel.

Another factor to consider is whether there is a reasonable expectation of privacy regarding recorded communications, even if you don’t intend to use it as evidence. But that’s a post for a different day.

What Does This Mean in a High Conflict Virginia Divorce?

If you have a spouse that insists on recording you, or following you around with his/her cellphone to record all interactions with you– you may be rest-assured as to the limitations placing restrictions on this evidence becoming admissible in court in a divorce case.

Lastly, one of the most effective and satisfying options in dealing with a high conflict person in this type of situation is to start recording them as well. If they refuse to listen to reason (which most high conflict people tend to do) you can absolutely resort to doing the same thing they are doing, understanding there may be limitations on using it as evidence. However, as long as you announce that you’re recording the high conflict person, that may be enough to deter future negative, high conflict behavior. Before you engage in recording, know that certain high conflict people can be very impulsive, erratic, and even violent, so safety first!

A high conflict Virginia divorce is an extremely difficult and strenuous process on every person involved. However, having a licensed and experienced Virginia divorce attorney can make this process less overwhelming. Contact Keithley Law, PLLC today by calling (703) 454-5147 and schedule an initial consultation in our Fairfax law office with an experienced high-conflict divorce attorney. We can walk you through the steps to get the most out of your case.

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