As thoughts turn towards divorce, tempers can flare and people may behave in ways they normally would not be proud of, even in a relatively amicable situation. Of course, the bad behavior of a spouse—ranging from neglect of household duties to infidelity to abusive actions—may well have begun long before the divorce, and may well be the reason for it.

In seeking a favorable divorce settlement, one that compensates you for violations of the marriage contract and shields you from your spouse’s ongoing bad behavior, you may feel the need to have evidence to bolster your claims by recording private conversations.

In a word: don’t.

Massachusetts laws on recording interactions between persons are possibly the strictest in the nation. While many states have “two-party consent” laws, meaning that both (or all) people on a recording must know they are being recorded and consent to it, the Commonwealth takes it a step further. Recording private conversations falls under Massachusetts statute chapter 272, section 99, also known as the wiretap statute.

Explicitly instituted as a measure against organized crime, the statute is of theoretical interest to law students because it addresses both police and civilian conduct with regard to recording in the same law. For civilians, there is an explicit ban on recording wire communications (i.e. phone conversations) and a ban on any audio recording by other means without consent.

While a subsequent court ruling (Commonwealth v. Jackson) would allow secret recording in public situations where there is not a reasonable expectation of privacy, there is continued debate over what constitutes ‘secret’ recording and ‘public’ space.

The penalty for violating the wiretap law is a fine up to $10,000, imprisonment of two-and-a-half years, or some combination of jail time and a fine. Using the contents of an illegal recording, even if one did not make the recording, is also banned and severely punishable. However, the statute only addresses protections for the privacy of oral communication captured on oral recordings. There is no mention in the statute of still photography or soundless video, however, which presents itself as a loophole. The statute also does not apply to social media photos, social media videos, texts and voicemails made by your spouse because there is no expectation of privacy with these examples.

Given that the penalties for an illegal recording are so severe, and that a family law court will not look favorably on “spying” against a spouse, it is safest not to record your spouse at all. Separate from the strict penalties that follow from the wiretapping statute, there are other complex legal issues involved, including marital privilege that protects communications between spouses.

As in all family law matters, it is best to consult with a lawyer about gathering evidence of your spouse’s ill-treatment of you. Call my office today to set up an appointment to discuss this further.