Going through a divorce can be stressful and many times allegations of abuse, mistreatment, or other bad behavior are made against one or both of the parties. Many people are tempted to record their spouse in a divorce case to expose their behavior to the Court and protect themselves from false allegations made by their spouse. While this is a natural response to false or misleading allegations made by your spouse, Illinois laws on surveilling or recording your spouse are complex, and improper recording of your spouse can lead to civil and criminal consequences.

Illinois is an “all-party consent” state, which means that all parties participating in a private conversation must consent to a recording of that private conversation for it to be admissible as evidence. In Illinois, recording a private conversation without everyone’s consent is “eavesdropping.” Someone in Illinois commits “eavesdropping” when they use an eavesdropping device (most commonly a cell phone in divorce cases), in a surreptitious manner, for the purposes of overhearing, transmitting, or recording all or any part of any private conversation, whether they are a party to the conversation or not, unless he or she does so with the consent of all of the parties to the private conversation. “Eavesdropping” carries criminal penalties and if you record a conversation in violation of Illinois law, you cannot then use that recorded conversation in civil litigation, like your divorce case.

There is a myriad of exceptions that outline when you can secretly record someone like your spouse. Further, “consent” is not simply defined and has its own complex definition under Illinois law. It is important that a party to a divorce proceeding is cautious and aware of Illinois law when deciding whether to record their spouse in order to obtain evidence to support their arguments in a divorce proceeding.

Andrew B. Ference, Partner

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