So, you think you want to catch your soon to be ex- on the phone in less than his ideal best – whether he’s been drinking, verbally abusing you or your child, or having a ‘private’ call with another. Sounds like a good idea to quietly record it and use it as leverage later doesn’t it? Wrong. Or, to be more precise, how wrong depends upon the following:
First and most important, do not ever record a telephone call that neither party to the phone call realizes is being recorded. If you do, you are violating both the Virginia and federal wire-tapping statutes. Therefore, if you tape the phone call between your spouse and that other person in his or her life, it could be you who is going to jail.
Virginia does, however, permit you to tape a conversation in which you are a party to the phone call. There is nothing illegal about that. But, recognize in advance that its usefulness may not be everything that you hope it is. The Virginia General Assembly has decided that such ‘one party’ recordings cannot be introduced at trial in any divorce or custody proceedings. There are a few exceptions to this general rule, but none you should assume will be applicable to your situation.
So, in short, do not ever record a phone call in which neither party knows they are being recorded. And, in Virginia, if you choose to record one in which you are the only party that knows it’s being recorded, recognize that the evidence of the recording may have far less benefit in any custody or divorce matter than you think it should.