Can my husband record our conversations in my Virginia divorce case?

Posted on Mar 14, 2018 by Katie Carter

On Monday, we talked about communicating with your husband during your divorce or custody case. Let’s just say that it isn’t easy, especially if he’s antagonistic and mean.

It happens fairly often that we get a case where the parties become consumed by “evidence”. They want to gather all kinds of information in an attempt to make the other party look bad. They seem to think that if they can just get the perfect piece of evidence – an admission, or something where the other party is freaking out or cussing or yelling – that they’ll automatically win their case.

In these types of cases, it often happens that one party or the other (or sometimes both) starts recording interactions with the other party in an attempt to goad the other into giving them the evidence they feel they need to win their case. It’s generally pretty obnoxious all around.

What do I do if my husband starts to try to record me? Can he do this?

Yes, he can do this – and it may very well be admissible. A good general rule of thumb is to behave (and talk and write – because, remember, he can also try to use emails or text messages) as if you ARE being recorded, and what you say WILL be used in court.

If your husband starts to try to record you, govern yourself accordingly. Assume he’ll use any and all means of communication as a way to try to get the “evidence” he needs to win. Make yourself beyond reproach.

Choose your words careful. Don’t get angry. Don’t huff, roll your eyes, flick him off, or act aggressively in any way, no matter how reasonable that might be under the circumstances. Talk clearly, calmly, and rationally. Be considerate, compassionate, and kind, even if that’s not at all the way he treats you.
Assume everything will be used against you, and pretend like you could lose everything if you lose your temper.

In fact, talk to him the way you’d talk to your boss. Professionally, and with the full knowledge that he could fire you. There’s definitely a fair amount of self confidence that can come from withholding information, and staying calm under a great deal of pressure. (Especially when you consider that your failure to give your husband exactly what he wants is probably going to be extremely frustrating to him!)

What if I want to record him?

Be careful. Be very, very careful. Usually, when my clients decide to do this, it’s because their husband started recording them first, and they want to help try to control the situation. It’s rarely very effective, but I can understand the reasoning – he’s recording me, so why shouldn’t I record him?

The trouble is, though, that generally people become more and more combative. The more they think they’re getting evidence that will help them win, the more aggressive and provoking they become.

Keep in mind that the judge is going to be looking at you as well as him, and your behavior will matter. It can be hard to understand a case in a vacuum (and a video really is a vacuum!) and so whatever emotion you show – whether you’re yelling, crying, cursing, or flipping him the bird – won’t resonate that well in court. It’s difficult for these things to show anybody in a particularly positive light, especially in a highly contentious divorce.

I find that, in these cases, people get more and more pretentious, too. They start using big words in an attempt to sound reasonable, I think, but they end up sounding ridiculous and argumentative. We end up hearing things like, “I would sincerely appreciate if you would refrain from doing so in the future.” It’s not the way we talk, and it doesn’t resonate well with judges.

In my experience, these things rarely show anybody in a very good light; both parties generally wind up looking spiteful, difficult, and unreasonable. Record if you like (after all, its your case), but I’d generally recommend complete silence.

What about texts, emails, and voicemails?

Just like your physical video recordings can be used as evidence (unless, of course, you are silent and give him nothing to use), so too can written communication (like texts or emails) or voicemails! Those types of things are already records that can be used in court, which is why I generally advise my clients to communicate this way. If you set up a specific method for communicating, like email, and then direct all your communication through email, it’s pretty easy to see the trial and understand what’s happening.
Still, you’ve got to keep your cool. But, then again, that’s always an issue.

Stay calm, cool, collected, and reasonable. Remember that tone is difficult to infer from a text message or email, so try to keep it as simple and to the point as possible (without seeming rude or discourteous). There’s no place here for sarcasm or inappropriate jokes; they won’t read well in a courtroom. Assume everything that you say COULD be used in court, and imagine if your mom, his mom, a GAL, a judge, and any other stranger in the courtroom might hear what you said.

Is this stuff good evidence?

That all depends. If you stay calm, that’s pretty good. If you and he are both antagonizing each other, it’s pretty unhelpful. I hate to use those kinds of videos, even if I get a little snippet from him that might otherwise be helpful, because I don’t want the judge to see my client and think she’s heinous. You never know how it’ll sound to the judge, and if there’s a chance the judge might find the fault to rest more squarely on my client’s shoulders, despite how reasonable it might seem to me, I’m going to try to keep that evidence out.

You should be very, very sensitive to how you’re portraying yourself, and what the things that you’re saying and writing might say about you as a person and a mother. Remember that the judge is a pretty unemotional presence in your case, and he probably won’t understand the things that you’re feeling. You need to be professional and eloquent, and not take your husband’s bait.

Communication can be difficult, especially if your husband does everything he can to bait you. Remember, though, that it’s all useless if you and he both sound equally bad (that often happens), or downright harmful if you wind up going off of him and sounding like a total lunatic. The fact that the way you’re feeling is completely justified probably won’t come across very well.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce attorneys, give our office a call at 757-425-5200.