Telephone Recordings and Emails Are Legal, and Common, In Divorce Cases

A case decided by the New Jersey Appellate Court on April 14, 2009, Brown v. Brown, reminds us of the significance of telephone recordings and emails in regards to divorce cases. There is a misconception among many people that it is illegal to tape record telephone conversations. It is not if you are a party to the call; as opposed to wiretapping a conversation to which you are not a party. That case it is illegal under both Federal and State law.

In Brown , Mrs. Brown with the knowledge and, perhaps, advice of her attorney tape recorded a telephone conversation with her husband. The conversation was then used to convict the husband of an act of domestic violence resultant from the "expletive laden" conversation.

Many, many times clients come to us with a handful of rambling, threatening or, at best, harassing emails from their spouses. Common courtesy and civility should dictate against threatening or harassing communications. But, in the emotions of marital strife things sometimes are said that are far better left unsaid.

A word to the wise: Once said it is a permanent record. Assume that every email you write will be shown to the Judge and that every telephone call with your spouse is being recorded. You have absolutely no right to privacy or confidentiality of a conversation or email you have had with or sent to your spouse.

Realize, also, that once written or recorded almost every communication can be retrieved. The delete button is no protection and once recorded (on an answering machine or during a conversation) the words can not be taken back.