I have this recording of my spouse . . . and Michigan divorce law: As a Michigan divorce lawyer, I recognize that it is not uncommon for someone to engage in recording a conversation to obtain evidence in contemplation of or in the middle of a divorce. Maybe your spouse is a habitual liar, or trying to hide an affair.
Disclaimer: Michigan divorce and criminal law constantly changes. Therefore, before acting on the advice in this or any other article, it is recommended that you speak with a Michigan divorce attorney directly before acting! Care should be taken so that your snooping does not cross the line and become a crime.
What about recording a conversation with your spouse or others? There are two major laws that must be considered when addressing eavesdropping issues, first, the Federal Wiretapping Act (http://www.law.cornell.edu/uscode/text/18/2511) and second the Michigan Eavesdropping statute (http://www.legislature.mi.gov/(S(ou0e00ijslnf53ygtgn1fd55))/mileg.aspx?page=GetObject&objectname=mcl-750-539a )
The Federal Wiretapping Act prohibits the interception of any wire, oral or electronic communication and 18 USC section 2515 provides that illegally obtained records or interceptions may not be used as evidence in any proceeding. The act also provides for civil damages and attorney fees. Recording a conversation under the Federal Wiretapping Act is illegal. However, section 18 USC 2511(2)(d) provides that recording a conversation is legal if you are a party to the conversation.
The Michigan Eavesdropping Statute, MCL 750.539a prohibits someone from recording amplifying or transmitting any part of the private discourse of others without the permission of all persons engaged in the conversation. Notwithstanding, in Sullivan vs. Gray, 117 Mich App 476(1982) the Michigan Court of Appeal held that a participant is excluded from the definition of eavesdropping. Therefore, recording a conversation is legal under the Michigan eavesdropping statute if you are a party to the conversation.
While obtaining evidence in your divorce case is important, doing so may be illegal so careful consideration should be taken before doing so. As for recording conversations, if you are a party to the conversation, it is ok. If you are not a party to the conversation, be wary.
For a general overview of criminal considerations in a divorce visit: https://www.thedivorceguy.com/criminal-considerations-in-divorce/ Here is a quick summary of some important criminal considerations in a Michigan divorce: It is unlawful in Michigan to intentionally (and without permission) access the email of another. See MCL sec. 752.795 effective April 1, 1997
- Adultery is still a crime in Michigan (although never enforced). See MCL section 750.30
- It is unlawful to install a tracking device on a vehicle. See MCL 750.539l of the Michigan penal code.
About Findling Law
I have been exclusively practicing divorce and family law in Michigan for over two decades. The attorneys at Findling Law all share the core value of practicing law to help people navigate change in their lives, without compromising principles. We specialize in high socio-economic, high-profile and high-conflict cases, while also working with clients of all backgrounds. We recognize that the most important aspect of the practice of law is the application of the law to your specific circumstances.
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By: Daniel Findling