Posted on December 5, 2015

In Illinois, Can I Record My Conversations With My Spouse?

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.

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.

Contact my Chicago, Illinois office if you have any further questions.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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