In the State of Texas, it is legal to tape record a conversation, as long as one party to the conversation is aware that it is being recorded. Tape recordings between the two parties to a divorce, are generally held to be admissible in Court, if relevant. However, there are a number of critical pitfalls that you need to beware of. First, make sure the other party is also in Texas. There are states where undisclosed tape recording is illegal unless consented to by all parties. If the other party happens to be in California during the call, you just violated California law, and you can be prosecuted. Secondly, make sure that you ARE a party to the conversation. Don’t for instance, put a tape recorder inside a plant in your living room. If you or your child has guests over and you leave the room for any reason, you will most likely violate federal law. What about if you program your telephone to automatically record all calls? You better not let anyone borrow your phone for a quick call, and you better not speak with ANYONE that might be outside the state while your phone is set to record. The third major pitfall is one most people overlook. Juries, and many judges are very distrustful of someone who would record a conversation. It just seems sneaky, and it makes the judge or jury more likely to dislike you.
Play it safe. You must be a part of the recorded conversation, and both parties must be in Texas.
None of those downsides, however, mean that it is always a bad idea. When should you record a conversation? Primarily, when it is in person, regarding a critical issue, and your spouse is trying to commit a fraud. For instance, he is telling the Court you have a drug addiction when you don’t, or she is threatening to tell everyone (falsely) that you hit her. It is amazing how many people will get in an argument, or even attempt a reconciliation with a spouse, and point blank admit that they are lying, or planning to lie, to the Court. Tape recordings I have effectively used include the following statements. “If you don’t give me the money for my car payment right now, I’m going to call the police and tell them you hit me”, “You’ll never be able to prove that I had more money”, and “I cheated on you more often than I can count, the first time three days after our wedding”. The most memorable tape was nearly an hour long, and consisted entirely of a wife trying to leave the house, while her husband prevented her.
The interesting thing is, I did not play a single one of those tapes for the judge. I played them for the other party’s attorney. In every case, we got the agreement from them that we felt was fair.
The thing to take away from this regarding recording conversations during a Texas divorce is: the rules are complicated (I did not go over all of them here), and knowing whether or not the recording would be a good idea is even more complicated. Don’t try to make the decision yourself. Consult a family law attorney.