Not only is it against federal and state laws, the evidence may not -- indeed almost certainly will not -- be admissible in court in a divorce trial.

Wiretapping is governed by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510-2520. The act provides that there is no interspousal exception that permits spouses to listen to and surreptitiously record the conversations of spouses. The act also provides for civil penalties for its violation.

Legal counsel should advise divorce clients not to secretly record the conversations of the other spouse.

Evidence cannot be considered by a court unless it is admissible under the rules of evidence. In divorce actions, admissible evidence might include custody evaluation reports, character testimony, the reports of forensic accountants.

Although wrongfully or illegally obtained evidence may be excluded from criminal or quasi-criminal actions, such evidence may be admissible in civil actions, including divorce. The general rule of admissibility in civil actions is based on the fact that the Fourth Amendment limits government conduct, not the conduct of private parties. However, while illegally obtained evidence is not necessarily inadmissible, some courts have limited sharply its use under public policy grounds or as a sanction against an attorney’s alleged participation.

See Evidence; Rules of Evidence; Standard of Evidence.

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