Can I Secretly Record My Spouse I Suspect of Cheating and Use it in My Divorce Proceedings?

Divorces can be very emotional, and spouses often consider various tactics as their marriage unwinds. Given that modern technology gives people the chance to make secret audio or video recordings relatively easily, there are situations where a divorcing spouse might consider taping their partner in order to catch them in the act of cheating or admitting to an affair. Whether you are looking to gain a legal advantage or just trying to get back at your spouse, clandestine recording is not something you should do unless you have a thorough understanding of the applicable law and potential consequences. 

Kansas law generally prohibits secretly using a device to record, listen to, or amplify private conversations unless one party has given consent to do so. Accordingly, it is not permissible to leave a recording device in a room where your partner is speaking privately with their new partner. However, if your spouse admits they cheated in a conversation with you, it is legal to make this recording because you’ve consented, even if your spouse is unaware they are being taped.  

While the state allows one-party consent, family court judges determine whether such recordings are admissible in divorce cases. Secret recordings might be admitted if they are deemed relevant and probative, such as when they include evidence of abusive behavior, infidelity, or other misconduct affecting child custody or property division decisions. However, judges may also frown upon such tactics, viewing them as a breach of trust that further inflames an already contentious situation. 

A key element in many cases involving secret recordings is the expectation of privacy. When someone is walking on the street with their boyfriend or girlfriend, they can be seen by anyone. Accordingly, they have no reasonable expectation of privacy, which means that they can be taped without their knowledge. 

Even when proper legal grounds exist to record a cheating spouse, you should still engage in careful consideration before taking this step. In many divorces, adultery does not have much effect on the eventual legal outcome. Exposing infidelity in a public setting could escalate tensions, making negotiations or co-parenting arrangements more difficult. Should you suspect that your husband or wife is cheating, you can seek to obtain relevant electronic communications and witness testimony during the discovery process once you file for divorce. 

The Henry Law Firm, P.A. in Overland Park represents Kansas residents in divorce proceedings and other family law matters. If you are considering terminating your marriage and are unsure about what to do next, we can help. For a consultation, please call 913-381-5020 or contact us online.