Q&A: Recording, Snooping and Tracking: What’s legal when going through divorce
by Rick Robertson
Is it legal to record your spouse on a phone call without their knowledge?
It depends. Texas is a one-party consent state, meaning it is legal to record a phone conversation when only one party to the conversation knows of the recording. However, there are many dual party consent states, like California, in which it is illegal to record a phone call without both parties knowing. So if you are in Texas and talking to your spouse in Texas you can record it legally. If you are talking to your spouse in a two-party consent state it is not legal to record the call.
Can I record my child’s conversations with the other parent?
Again, it depends. If neither the child nor the other parent knows the recording is being made that is technically a violation of state and federal wiretap laws. However, a parent generally has the right to consent for their minor child. Generally speaking, judges would not approve a parent recording a call between a child and the other parent there are cases that have allowed such a recording into evidence.
Can I video record my spouse?
Yes, as long as you are not video recording audio communication between people when none of them knows they are being recorded.
Can I open and/or read my spouses’ mail?
Whenever a divorce is filed in Dallas or Collin County a Standing Order signed by all the District Judges is attached. That order prohibits opening or reading a spouse’s mail and accessing a spouse’s email.
Are my spouse’s text messages to me admissible in Court?
Generally yes, and they are often so voluminous that lawyers spend many hours filtering through them in order to find those most relevant to the issue.
Legally obtaining your spouse’s text messages
Have you seen any of the news segments about law enforcement breaking into alleged criminals’ iPhones? Courts will sometimes allow the hiring of a professional forensic examiner to image and then explore everything recoverable on a cell phone, which includes text messages. Usually, however, there has to be a good reason and the spouse wanting the investigation pays for it.
Is it illegal for my spouse to snoop through my computer files once the marriage is ending?
Again it depends. If the files are on a common computer that is jointly owned and used by both parties it is not illegal to snoop through computer files. Professional forensic examiners can be hired for that purpose just as they can for analysis of a phone.
Can I install a GPS locator on my spouse’s car?
It is a crime to install a GPS locator on a car that you don’t own. (Texas Penal Code, Sec. 16.06) Some lawyers take the position that since Texas presumes all property at the time of divorce is community property then it is legal. However, the Penal Code makes it illegal to install a tracking device on a motor vehicle owned or leased by another person so the joint ownership argument would cut both ways. We don’t recommend installing a device or having someone install a device.
If you have more questions regarding the best way to protect your family and yourself during family law proceedings, contact President and Plano Managing Shareholder Rick Robertson at (972) 769-2727.