As family law attorneys, we are often asked whether it is okay to record a spouse. For purposes of documenting escalating issues or arguments in the marital home, or to gather evidence to establish your spouse as a liar or adulterer, perhaps it is. Recording can be a powerful tool in a Michigan divorce or family law matter, but only when done within the boundaries of the law.

There are two major laws that must be considered when addressing eavesdropping issues:

The Federal Wiretapping Act

The first is the Federal Wiretapping Act (18 U.S.C. § 2511), which prohibits the interception of any wire, oral, or electronic communication. 18 U.S.C. § 2515 provides that illegally obtained records or interceptions may not be used as evidence in any proceeding. The Act also provides for civil damages and attorney fees. Recording a conversation under the Federal Wiretapping Act is illegal. However, 18 U.S.C. § 2511(2)(d) provides that recording a conversation is legal if you are a party to the conversation.

The Michigan Eavesdropping Statute

The second is the Michigan Eavesdropping Statute, MCL § 750.539c, which prohibits someone from recording, amplifying, or transmitting any part of the private discourse of others without the permission of all persons engaged in the conversation. Notwithstanding, in Sullivan v. Gray, 117 Mich App 476 (1982), the Michigan Court of Appeals held that a participant is excluded from the definition of eavesdropping. Therefore, recording a conversation is legal under the Michigan Eavesdropping Statute if you are a party to the conversation.

It is important to understand that violating MCL § 750.539c is a felony under Michigan law, carrying the potential for criminal prosecution in addition to civil liability. If you are not a party to the recorded conversation, the recording is not only likely inadmissible — it may expose you to serious criminal consequences that could negatively affect your divorce or custody case.

What About Recording Conversations Involving Your Children?

A common question we receive is whether a parent may record a conversation between their child and the other parent. This is a significantly more complicated area of the law. In general, a parent cannot consent to recording on behalf of a minor child unless the parent has a good-faith, objectively reasonable belief that the recording is necessary for the child’s welfare. Courts have not applied this exception uniformly, and relying on it without legal guidance is risky. Consult an attorney before attempting to record any conversation in which you are not a direct participant.

Alternatives to Recording

If recording is not an option or carries too much legal risk in your situation, other forms of documented evidence can be just as persuasive in court. Text messages, emails, voicemails, and social media activity are commonly used in Michigan divorce and custody proceedings. Our attorneys have written about how a digital footprint can become a valuable asset in divorce litigation and how social media posts are treated as evidence by Michigan courts. These alternatives carry fewer legal risks than unauthorized recordings and can be equally effective in establishing your spouse’s conduct.

Consult an Attorney Before You Act

Prior to recording a spouse to obtain evidence, it is important to consult with an attorney, as laws are constantly changing and you do not want to engage in criminal behavior. As it stands, if you are a party to a conversation, it is permissible to record your spouse. However, if you are not a party to the conversation, it is not advisable or permissible to record your spouse, as you may be engaging in criminal behavior which could result in prosecution or further negative implications in your divorce or post-judgment matters.

If you are dealing with escalating behavior from a spouse and need to understand what evidence is legally usable, our attorneys can help. This question often arises in cases involving domestic violence allegations or disputes over spousal support and custody. The attorneys at ADAM will help you build the strongest, most legally sound case possible.

About ADAM (American Divorce Association for Men)

The American Divorce Association for Men (ADAM) is a group of highly qualified attorneys who advocate for men’s rights in divorce, child custody and parenting time, paternity, support, property settlement, post-judgment modifications, and other family law matters. Since 1988, ADAM has been aggressive, diligent, and uncompromising when representing their clients. A team of compassionate and skilled family law attorneys, ADAM is dedicated to being Michigan’s leading divorce attorneys for men and practices a policy of integrity in all dealings.