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  • Writer's pictureRobert Tsai

Wiretapping in Texas Divorce and Custody Cases

Updated: Apr 3, 2023

Oftentimes, when spouses are involved in a contentious divorce or custody action, many fact issues can come down to he said/she said arguments. To avoid that, some people consider recording their conversations with their former partners. However, before doing so, it’s important to understand the legal and ethical issues involved.

There is both a Texas state law and a federal statute that address this issue. The federal law is called the Federal Wiretap Act, and it prohibits anyone from intentionally intercepting any wire (i.e. telephone), oral (i.e. in person), or electronic communications (i.e. video calls). The Federal Wiretap Act also makes it a crime to share or use the contents of any such intercepted communications for any purpose, provided the person doing the sharing knows or has reason to know the information was obtained illegally.

Notably, there is no exception to this rule if the individuals involved are spouses or co-parents. Spouses and other parents still have privacy rights protected by federal law. Consequences for violating the Federal Wiretap Act can be both criminal - fines, imprisonment for up to five years, or both - and civil. Civil remedies include injunctions against further recording and a variety of monetary damages, including punitive. Notably, the federal act also prohibits the use of any illegally obtained communication as evidence in any court proceeding, thereby rendering the stolen communication worthless in a divorce or custody case.

The Texas Wiretap Act is similar to the Federal Wiretap Act but has a few key differences. In addition to the prohibitions under the Federal Wiretap Act, the Texas Wiretap Act also prohibits someone from effecting a covert entry to intercept a communication or soliciting another person to commit wiretapping. It also makes a person criminally liable for using illegally obtained communications if they are “reckless” about whether it was obtained illegally. This is a lower standard than the federal act. Violating the Texas Wiretap Act can result in a second-degree felony conviction and civil damages of $10,000 per offense, plus actual damages over that amount and punitives.

As you can see, unlawfully recording someone else’s communications can have serious consequences. However, both the federal and Texas wiretapping laws have an important exception. If the person recording the call is either (1) a party to the conversation or (2) has the prior permission of one of the parties to the conversation to be recorded, then the interception is not unlawful. This exception is called “one-party consent.” While Texas and most other states abide by this rule, a minority of states require the consent of all parties before these interceptions are considered lawful. And if the communication in question crosses the state lines, the most restrictive rule applies. Thus, it’s important to know the location of both parties to the communication before recording it.

Even though Texas is a one-party consent state, there are still risks to recording conversations with your ex-spouse. And if you try to intercept their communications with other people, you’re likely committing both a federal and state crime. That’s why it’s important to have experienced, competent legal counsel advising you through your divorce or custody dispute. In other words, you need a lawyer like Robert Tsai. Click here to schedule a consultation today, or call us at 832-278-1995.

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