Is It Legal to Secretly Record Abuse for Use in Divorce Court?

Unfortunately, divorce is sometimes precipitated by abuse in the marital home. If the divorce case goes to trial, the abused spouse may want to introduce evidence of the abuse, but such evidence can be hard to come by and it often becomes a question of one spouse’s word against the other’s. Thus, while the spouses are living together, it may be tempting for the abused spouse to secretly record the abuse. But before doing so, you should be asking the question, "Is it
legal to secretly record my spouse's abuse?"

Secretly Recording Spousal Abuse is Technically Illegal in Massachusetts.

In Massachusetts, strictly speaking, it is not legal to secretly record your spouse. The Massachusetts wiretapping statute, G.L. c. 272 § 99, requires both communicating parties to consent to the recording. A secret recording lacks the other party’s consent, and therefore violates the statute. The spouse making the recording risks a lawsuit from the other spouse — that is, if the abuser is willing to file a lawsuit over evidence that shows him or her being abusive!

Illegally Obtained Evidence Might Still Be Admissible in Divorce Court!

However, even if a secret recording violates the wiretapping statute, the evidence might still be admissible in divorce court. Several Massachusetts appellate cases make it clear that a family law judge has discretion to admit evidence that was obtained unlawfully, particularly when the evidence was obtained by a private citizen without police involvement. In short, secret recordings violate the wiretapping statute but might still be admissible in court. Because a secret recording could be the best — or only — tangible evidence of abuse in the marital home, an abused spouse in possession of such evidence has a difficult decision to make. After carefully weighing the legal risks and benefits under the specific circumstances of the case (preferably with an attorney’s guidance), the abused spouse may wish to take a chance and attempt to introduce the recording at trial. If successful, the evidence could prove invaluable when it comes time for the judge to reach a decision.