Recorded conversations in Virginia divorce

Posted on Aug 2, 2017 by Katie Carter

It doesn’t happen all the time, but every so often I get a question about what to do in the event that someone else starts recording your conversations—ostensibly to use against you in some kind of civil or criminal proceeding.  In divorce law, most of the time those conversations are intended to be used as evidence against a wife by her husband in a divorce, support, or protective order case.

There are very few things as infuriating as having someone following you around with a recorder trying to goad you into saying something you shouldn’t, especially when that person is already (pardon my French) on your crap list.  Obviously, somewhere, somehow, your relationship started to go downhill (or you wouldn’t be in this position at all), and then, from there, somehow a voice recorder or cell phone became involved. Lots of people ask about the law regarding recorded conversations in Virginia, and I can tell you that I’ve been in a number of hearings where this type of evidence has been allowed.

Usually, people try to record conversations sneakily; technically, the law in Virginia is that only one party has to be aware of the recording.  Sometimes, though, they’re very obvious about it.  Either way, though, it’s virtually impossible to control.  After all, you can’t force him to stop.  I’m an attorney, and I can’t really force him to stop.  All I can do is follow the legal process, and hope that it provides me a specific outlet through which I can stop his behavior (like, for example, if I were to get an order preventing his harassing or interfering with you, like at the pendente lite hearing, or if I were to get a protective order).  Even so, even assuming that I could get one or both of those things in place, you’d be stuck dealing with his behavior until we actually got into court and addressed it in front of a judge.

So, really, if your husband or child’s father is insisting on recording you or following you around with his cell phone and recording a video of your interactions, you’re going to have to tolerate it.  Especially if you’re living in the same home and can’t afford to go somewhere else, there’s very little that we can do in the mean time. The best course of action?  Give him nothing that would make you look bad.   It may sound juvenile, but the silent treatment is always an option.  No one can find fault with you if you don’t provide him with any sort of material at all.  Being completely silent is a way to ensure that there is nothing usable coming out of his efforts.  Sure, you resisting him will probably make him angry, and could result in redoubled efforts on his behalf (at least for a little while), but you can sleep soundly at night knowing that you haven’t given him any kind of material that could cause a judge to think ill of you. You don’t have to be silent, of course.  You can ask, politely, that he not record you.  You can ask that no further discussion take place until your lawyers can be involved.  You can say that you’re not comfortable having these types of conversations in front of your children.  You can, in short, say anything that deflects the situation while allowing you to look cool and collected.

What you don’t want to do is start yelling or screaming, to hurl profanities, to threaten, or to do anything that validates the arguments that he’s making.  Is he doing this to show that you’re a bad parent?  Then a conversation where you hurl a string of profanities in his direction, even if he goaded you into it, when it’s obvious that your children are around will definitely help cement his case.  Is he doing this to show that you’re irrational and violent?  Then a recording of you threatening to hurt him will certainly provide a lot of credence to his words.

Essentially, you need to think about whatever he’s trying to prove by recording you, and do your best to prevent your words from proving his point.   I know.  It’s infuriating.  He keeps going at you, over and over, even when you’re exhausted and heartsick and feeling miserable.  I know.  It’s hard not to scream and yell at him under the circumstances—but, if you do, you’re only playing into his hands.  If you do, you’re handing him evidence and hurting your own case.  Yes, it’s awful, obnoxious, annoying, and all around infuriating—but you’re not helping anything by giving him what he wants.

I feel like I really sound like my mother right now; she’d tell me, when I was a little girl, to let people’s comments, if they were mean spirited or hurtful, to roll right off.  Don’t respond, because, by responding, you’re giving them the attention they crave. It was good advice on the playground, and it’s even better advice now.  You’re going to want to make sure that you protect your case in as many ways as possible, and you’ll need to do that by refusing to give him the information he wants. Be careful, and think through what you’re saying.  I can’t tell you how many times I’ve had a client tell me they have a recording or a series of text messages that “prove” some point or another about their husband or child’s father.  Then, when I listen to it, they sound crazier than their husband!

You’ll want to be careful about how you sound, because, if evidence of this kind is introduced in court, it’s going to be difficult for the judge to take in the entirety of the context.  The fact that he’s following you around, trying to record any little misstep, may easily be lost in translation in the courtroom. I wish I had a better answer, but there really isn’t one.  If he insists on following you around, trying to catch you, there’s not a ton we can do to stop him.

If he has an attorney, we can send a letter asking him to stop, but, obviously, if he decides to persist in this course of action, there’s very little we can physically do to stop him.  He’s not breaking the law, so…really, our hands are tied. All you can do is refuse to give him what he wants.  Don’t answer his questions.  You’ll only be playing into his hands—and that’s the last thing you want to do. It’s frustrating, but it’d be way more frustrating if his recording actually worked against you in your divorce, support, or protective order case.  For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.