Unless you have been living under a rock in recent days, you have heard about Donald Sterling, the owner of the Los Angeles Clippers, his race-based comments recorded by his girlfriend, and how his comments led to his lifetime ban from any and all NBA related activities. While I am not going to use this blog as an opportunity to discuss what happened (read the firm’s Sports Law Scoreboard Blog for that), it is how the infamous recording that led to this troubled man’s downfall connects with our world of divorce that is worth discussion. Indeed, I have blogged on many prior occasions about the dangers of using social media in divorce, but what about a situation where you are tape recorded without your knowledge?
In Sterling’s case, his alleged girlfriend taped a phone conversation between them without his knowledge. While the recording was used by the NBA in rendering the lifetime ban, could the recording be used for evidentiary purposes in a legal proceeding? While I cannot speak in detail about California law, it is a two-party consent state. In other words, every person who participates in the discussion must agree to be taped in order for it to have legally occurred. How about in New Jersey? Well, New Jersey is a whole different story. Known as a one-party consent state, only one person involved in the discussion needs to consent to the recording being made. In other words, only the person who is doing the actual recording needs to be okay with it, which essentially goes without saying.
As a result, many of our cases involve litigants who recorded the other party, without that party’s knowledge, saying something that can potentially be used as evidence in the divorce proceeding. Perhaps the recording revealed that the other spouse is working (despite claims that she is a stay at home mother without any income), or perhaps it reveals that she hid assets (after having claimed full disclosure on her Case Information Statement). From a custody and parenting time standpoint, perhaps the recording reveals that he is still drinking excessively (despite claims that he never drinks at all or finished his rehab program to completion, or he admits to striking the child (despite answering otherwise in his answers to interrogatories or when testifying during a deposition). Like with the perils of social media, the possibilities of what may show up on a recording are truly endless.
Depending on a given set of facts and circumstances, it may be advisable for a party to procure a recording device and use it when speaking with the other litigant. For one thing, it could prove to be very useful should the other spouse ever make a false claim of domestic violence. A recording of what truly transpired can be extremely valuable, whether the allegations are true or not. In other instances, you never know what the other party may say that could be useful on any issue, including those I list above. On the other hand, if the recorder is used in a certain way – perhaps left in the other party’s bedroom recording for days on end – it could, potentially, constitute a form of domestic violence in and of itself should the other spouse discover the device. Thus, there are risks depending on how the recording is made.
If you are not recording the other party, always be aware that you may be recorded. Everything you say, and everything you do may be on tape, and may eventually be used against you in your divorce, post-divorce, or custody proceeding.
Ultimately, the Sterling recording led to the ban. The fact that the recording was of a private phone conversation shows just how damning the content thereof could potentially be. Family law litigants in New Jersey, which requires the consent of only one party to make such a recording, should be cognizant of both sides of the coin when conducting themselves with the other party.