Wiretapping and Divorce

1. Can a person record or tape a conversation of his or her spouse?

Pursuant to federal and state wiretapping statutes, a person is legally permitted to record and tape a conversation only if the person who is doing the recording or taping is a party to the conversation. A person can’t tape a spouse while he or she is talking to other people, and more specifically a paramour.

In 1991, a New Jersey trial court in the case of M.G. v. J.C., 254 N.J. Super. 470 (Ch. Div. 1991), addressed the issue as to whether a husband violated the wiretapping statute by taping his wife’s telephone communications in the marital home, and whether such actions could result in damages. The court ruled that it was illegal for a person to record the phone conversations of his spouse with another person. The court reasoned that the invasion of privacy was severe. The court found that the secretive taping of a spouse’s telephone calls under those circumstances was an egregious invasion that warranted both compensation and punitive damages.

Therefore, although both New Jersey and federal wiretapping laws permit the taping of a conversation to which an individual is a party, any other form of taping or recording of another person’s conversation can be a violation of criminal and civil wiretap laws.

2. I believe that my husband is cheating on me. Can I wiretap his phone?

Divorce is a nasty business. In my experience, I have encountered many cases where spouses wiretap the home phone, the spouse’s office phone, or the cellular phone in order to obtain information about their spouse’s affair or other information. In New Jersey, the use of an unauthorized taped conversation is inadmissible because the illegal taping violates state and federal law. The spouse could be civilly or criminally liable as a result of attempting to introduce such information.

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