Sometimes spouses pursuing a divorce in South Carolina may become so frustrated with their ex-partner’s conduct, or so desperate to demonstrate the reality of the other party’s conduct to a South Carolina Family Court, that they may consider recording conversations with their spouse, and wonder what the legal requirements and ramifications are for so doing. Generally speaking, South Carolina laws only require the consent of one party to a conversation for its recording to be legal, so recording your own conversations with a former partner in South Carolina will be unlikely to break the law under most circumstances. Recording your ex’s conversations with someone else, however, might be a violation of federal wiretapping laws – potentially resulting in felony charges. Legality in and of itself does not mean that recording conversations with your spouse during divorce will be a good idea, or achieve the desired results. Before taking desperate measures, consider consulting with an experienced South Carolina family law attorney to discuss your legal options and strategy. Call 888-748-KING today to be connected with a member of the King Law Offices team near you.
Recording Laws – State and Federal
When spouses ask about the laws concerning recording conversations, particularly during divorce, they often have in mind federal wiretapping laws, primarily found under 18 U.S.C. § 2511. Under these laws, which apply throughout the United States, it is generally illegal for a “third party” (i.e., anyone not taking part in the conversation) to intercept a private telephone or electronic communication for the purpose of recording the exchange without either the consent of at least one party to the conversation or a warrant, issued to law enforcement personnel for probable cause. As a general rule, federal wiretapping laws can be expected to also apply to the recording of private conversations (i.e., those held in a non-public setting, where a participant not planning to record might have a reasonable expectation of privacy), as most such conversations are likely to meet the statutory definition of an “oral communication” set out in 18 U.S.C. § 2510.
States may, and some do, impose more stringent requirements in order to protect the privacy of their citizens’ communications, typically by requiring both or all, rather than only one, of the parties’ consent to the recording. South Carolina is what is known as a “one-party consent” state, meaning that the consent of any party to the recording of a wire or electronic communication is sufficient to make the recording legal under state as well as federal law, as the Reporters’ Committee for Freedom of the Press (RCFP) explains; S.C. Code, Title 17 Chapter 30, contains the state laws broadly similar to the federal Electronic Communications Privacy Act of 1986.
Why Do Spouses Consider Recording Conversations During Divorce?
There can be several reasons why spouses going through a divorce may sometimes consider recording conversations with their former partners. The reasons will usually depend to some extent on the issues that are contested in a particular divorce, and on how state laws handle those issues. That said, the reasons do tend to cluster into a few general categories.
To Prove Legal Grounds for Divorce
One of the most common reasons in states that prioritize fault-based divorces is to try and get the ex to admit to some action or behavior that will give the person recording legal “grounds” for pursuing divorce. This kind of reasoning, intended to elicit a confession of wrongdoing, may be especially common in states whose laws limit the options for no-fault divorce, and in general means that the party recording the conversation will try to steer the topics so as to make the issue they hope to hear confessed appear to arise “naturally” during the discussion. What constitutes a usable admission of “fault” will of course depend on what the state’s laws define as legal grounds for divorce; in South Carolina, some “fault” grounds, such as adultery, are more readily evidenced by this type of recorded conversation than others, such as habitual substance abuse, that may be more susceptible to demonstration via other means (such as receipts showing purchases of the substance in question).
To Argue for Specific Outcomes
Another reason for recording conversations during divorce is to collect evidence not to prove legal grounds for the divorce itself, but in support of the recording party’s position with respect to an issue that is contested in the divorce proceedings. Common examples in this category include the existence of assets undisclosed in court documents or admissions of deliberately shirking financial support or parental custody obligations.
Spouses in South Carolina sometimes mistakenly believe that recording evidence of verbal abuse may help them to show legal grounds for divorce; this is not the case, as South Carolina’s domestic abuse provision for divorce only covers “physical cruelty”; mental abuse or cruelty is not considered under the South Carolina divorce statutes, according to the South Carolina Bar Association (SCBA). Recordings of verbal abuse may, however, sometimes be used in child custody disputes to show evidence of one spouse’s unfitness as a parent; spouses considering any attempt to record verbal abuse in front of, and especially directed at, the children should take into consideration that the strategy can easily backfire, as it could be perceived as knowingly exposing the child or children to harmful conduct. An experienced child custody lawyer with King Law Offices may be able to help you determine whether petitioning the South Carolina Family Court to appoint a guardian ad litem to investigate your family situation and represent your child’s best interests before the judge could be a more effective option. Recorded conversations with a lower “combustibility” profile include mentions of non-abusive, but illegal or unwise, behavior while parenting, or potentially exposing children to or leaving them with individuals who may similarly put unsafe or illegal behavior on display.
To Gain Concessions
Sometimes the goal of recording conversations during divorce may not be to ever have the recordings admitted in court as evidence. Instead, the point is to show the admitting party that the recording exists, in hopes of getting the recorded spouse to concede on one of the issues contested in the divorce. This strategy can also backfire, for a couple of reasons:
- The spouse who has made a disclosure that reflects poorly on his or her own conduct or character may or may not be sufficiently concerned about the possibility that the spouse in possession of the recording will file a Request for Admission with the court to give the requested concession.
- In some cases the spouse who was recorded without his or her knowledge may consider filing a countersuit alleging that the conversation was recorded in a manner that violated his or her privacy; even if the judge presiding over the case does not ultimately award damages in such a countersuit, a South Carolina court may still view the secret recording in an unfavorable light.
The circumstances under which a conversation is recorded, and the methods used in recording, can sometimes affect the legality of recording conversations with a spouse during divorce.
When Is Recording a Conversation Illegal?
While it is legal to record your own conversations, as a consenting party, in most situations, recording a conversation in which you are not a participant can in many cases be a violation of both state and federal laws. Both 18 U.S.C. § 2511 and the South Carolina Homeland Security Act contain provisions prohibiting third parties (anyone not taking part in the conversation) from recording conversations conducted via electronic or wire (e.g., telephone) communications devices. The same provisions also prohibit recording conversations that take place in person except under certain circumstances. Consequently it may be illegal for you to attempt any recording of your spouse’s conversation with his or her affair partner, even while recording an admission of adultery your spouse makes in a conversation with you might be permitted under state and federal laws. An attorney may be able to help you evaluate the factors that could affect the legality of recording conversations in your divorce case.
Speak With a South Carolina Family Law Attorney To Learn More About Your Legal Rights
Divorce can be a difficult experience for almost anyone, and South Carolina’s strict laws limiting the conditions under which spouses may seek a no-fault divorce can sometimes lead individuals trapped in unhappy marriages to consider risky measures in their attempts to find “proof” of fault to move their divorce case forward. South Carolina residents experiencing the frustration of protracted hearings and settlement negotiations in an extended divorce case may also find themselves looking for leverage to use in advancing their case. In most cases, recording conversations in which you are personally a participant will be legal in South Carolina; recording conversations between other persons, however, will require the consent of at least one party to the conversation. If you have concerns about the legality of recording conversations with your spouse during divorce, it is likely that you may have a number of other questions related to South Carolina divorce laws as well. Reach out for experienced guidance by calling King Law Offices at 888-748-KING to speak with a member of our South Carolina family law team near you.