Many people believe they can get some kind of leverage in a divorce case by recording their conversations with their spouses or exes. What’s more, recording a phone call is now extremely easy due to the record functionality being available on virtually all smartphones.
In Illinois, recording a phone conversation is illegal.
720 ILCS 5/14-2 reads “A person commits eavesdropping when he or she knowingly and intentionally…Uses an eavesdropping device, in a surreptitious manner, for the purpose of transmitting or recording all or any part of any private conversation to which he or she is a party unless he or she does so with the consent of all other parties to the private conversation”
This would apply to a telephone call that is recorded or simply pressing “record” while your phone is in your pocket while you have a conversation.
There is a serious penalty for eavesdropping. “Eavesdropping, for a first offense, is a Class 4 felony and, for a second or subsequent offense, is a Class 3 felony.” 720 ILCS 5/14-4(a)
Even if the electronic eavesdropping is not prosecuted, the recording still cannot be used in any Illinois court of law.
“Any evidence obtained in violation of this Article is not admissible in any civil or criminal trial” 720 ILCS 5/14-5
While it may be tempting to “get evidence” this way, it is illegal and cannot be condoned. Your lawyer has numerous tools available to him or her to get evidence such as subpoenas and depositions. Allow your lawyer to use his or her legal skill set to get the evidence your case needs. Do not break the law!
There is an exception to the bar against recording people without their consent. You may record someone if you think they are committing a crime or are about to commit a crime. So, if the recording records some type of potential assault, battery or harassment…that recording is legal.
“The following activities shall be exempt from the provisions of this Article [720 ILCS 5/14]…Recording of a conversation made by or at the request of a person, not a law enforcement officer or agent of a law enforcement officer, who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording” 720 ILCS 5/14-3(i)
There are other numerous exceptions to this law but they are almost all related to the law enforcement and never for conversations between spouses unless all parties know they are being recorded.
There is even a federal eavesdropping law with similar language and no interspousal recording exception at all.
Recordings that are surreptitious (hidden and unapproved) are illegal but what if you wave your phone in front of your spouse’s fave to record them in an argument?
Recording someone visually on camera is allowed…but not in their own home.
“It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person’s residence without that person’s consent” 720 ILCS 5/26-4(a-5)
Most recordings happen during arguments. Most arguments happen in the home. You cannot tape someone in their home without their permission.
The Exception To The Bar Against Recorded Evidence
720 ILCS 5/14-5‘s bar against using wrongfully recorded evidence is designed to remove the incentive of a person to record in the first place. There is one person, however, that is welcome to use all recordings, legal and illegal, when preparing evidence for the court: A Guardian Ad Litem (also referred to as a “GAL”).
Guardian Ad Litems investigate the family dynamic and report back to the judge their findings. “A GAL is the ‘eyes and ears’ of the court.” In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415 (1994)
The Guardian Ad Litem’s investigation is not limited by the rules of evidence or any laws that explicitly bar the use of any kind of evidence. In re Marriage of Karonis, explicitly allows Guardian Ad Litems to consider wrongfully recorded conversations.
“To the extent respondent asserts that the GALs cannot consider inadmissible evidence in forming their opinions, his argument is baseless. Section 506 of the Illinois Marriage and Dissolution of Marriage Act requires the GAL to defend and protect the best interest of the child whom he or she represents. In discharging his or her duty, the GAL will review or consider all kinds of information regarding the child, both admissible and inadmissible at trial. Such information assists the GAL in determining the existence of problems that might cause the child psychological or physical harm. We fail to see any prejudice where the GAL listens to information that may be inadmissible at trial. Compelling reasons of public policy dictate that the GAL perform duties essential to the health and welfare of the child whom the GAL represents. Paramount among these is the GAL’s duty to ascertain and defend the child’s best interests. Reviewing the tapes materially advanced the GALs’ ability to determine and defend the child’s interests here. Accordingly, we find that the trial court did not err in allowing the GALs to listen to the tapes.” In re Marriage of Karonis, 693 NE 2d 1282 – Ill: Appellate Court, 2nd Dist. 1998
How To Get Your Spouse’s Horrible Statements In Front Of An Illinois Divorce Judge
If you want to get a record of the conversations you have with your spouse, the solution is simple: text them instead of calling or recording them! Texts to and from your spouse are absolutely allowed into evidence and are not subject to eavesdropping laws. Emails are also admissible in a court of law.
Contact my Chicago, Illinois office if you have any further questions.
I, Russell Knight, wrote this article (and all the other articles) after dealing with this issue dozens of times in divorces, parentage actions and orders of protection. I am a licensed Illinois family law attorney with over 19 years of experience protecting people through vulnerable family law transitions.
Frequently Asked Questions About Recording Conversations During A Divorce
Is it legal to record a phone call with my spouse in Illinois? No, unless you let them know you are recording the call.
Can I record a conversation with my spouse if I’m part of the conversation? No. Illinois is an all-party consent state. Everyone in the conversation has to know the conversation is being recorded or the recording is illegal.
Is it legal to record my spouse when they can see me holding up my phone to record? Yes, as to the audio because you have put them on notice. However, if the video recording is in their home you will need their consent.
Can an illegally recorded conversation be used as evidence in my Illinois divorce? No. An illegal recording is not just a crime, it’s also useless in your divorce case.
Can A Guardian Ad Litem listen to illegally recorded conversations in Illinois? Yes. Guardian Ad Litems can listen to illegally recorded conversations and use those conversations as a basis to make a recommendation to the court.
