Can I record my spouse's phone calls?


Lawyer's Tip:  Unless your spouse is committing criminal acts against you or other household members, do not record phone conversations.

Most divorce attorneys field this issue many times in their career.  The lean and fast answer is no.  However, spouses should understand all the various aspects of this topic, as it does come up in nearly every divorce.  Recordings in a divorce create a minefield, of sorts, where everyone should be careful.

First, and foremost, let's talk about statutes related to what is deemed electronic "eavesdropping."  At the federal level, (and federal laws do apply!), there is what's called the  Omnibus Crime Control and Safe Streets Act.  This law essentially prevents you from recording telephone conversations without the other's permission.  More importantly, is that the law provides that the person who was recorded, can file a lawsuit against you for civil damages.  (as you will read below, you in addition to civil damages, you are also at risk for criminal damages).

Most States, like Illinois, have what's typically called an Eavesdropping statute.  Much like its twin at the Federal level, this State law makes eavesdropping illegal and a Class 4 Felony. Illinois permits a person to seek out an injunction to prevent future recordings.

Illinois' law also provides for damages against persons who knew that you were recording the conversations (in the case of a landlord or other building owner), and it does appear that punitive damages are available.  (for all non-lawyers, punitive damages are scary things.  They are damages that are assessed on your assets, as opposed to what you did wrong).  So, on their face, the federal and state laws are very unfriendly when it comes to recording phone calls, and the reason why most (if not all) divorce attorneys will instruct you not to record anything.

However, there is an exception to the Illinois Statute.  Mainly, you can record a phone call if you have a "reasonable suspicion" that the other person is committing, is about to commit, or has committed a criminal offense against the other person in the phone call or their immediate household or household member.  With that broad of an exception, there can be limitless opportunities to record a conversation.

All said, the generally rule is no, you shouldn't record your spouse's conversations.  However, spouses should note that if they feel that their spouse is either committing a crime against them, or other family members, then the recording is permissible.  Additionally, be mindful that the laws don't apply to voice-mails.  Voice-mails do not apply because the person leaving the recording knows of the recording and permission is inferred.   

If you have any questions regarding this topic,
please call Paul D. Nordini at (630) 306-6300
or email at: 

Nordini & Thompson, a practice exclusive to divorce and custody litigation.