Monday, March 17, 2014

Recording Telephone Calls with your Ex-Spouse


I have had several clients ask me if they can record telephone calls with their ex-husband or ex-wife.  This could be done with the hope that the recording could be used in court later.

Recording telephone calls in the State of Nebraska is not illegal so long as one party to the conversation has given their consent to be recorded according to .  As long as you give your own consent to the recording (which you presumably are when you yourself are the one doing it), then there will be no issues. This is why Nebraska is referred to as a “One-Party Consent State.”  However, it is not as clear when one ex-spouse is in another state.

What is Allowed in Nebraska?

It is not unlawful to intercept a wire, electronic, or oral communication when the interceptor is a party to the conversation or one of the parties to the communication has given prior consent, unless the communication is intercepted for the purpose of committing any criminal or tortious act. Neb. Rev. Stat. § 86-290 (2)(c)

It is illegal to intentionally disclose, or publish, the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information was obtained through illegal interception. Neb. Rev. Stat § 86-290(1).

Only injunctive relief can be sought for a first offense; subsequent violation gives rise to a $500 fine. Neb. Rev. Stat § 86-290 (5)(b).

In addition, any person whose communication is intercepted or disclosed may recover in a civil action from the person or entity which engaged in the violation such relief as a judge deems appropriate, including injunctive or declaratory relief and reasonable attorney fees and other litigation costs. Neb. Rev. Stat § 86-297.

One-Party versus Two-Party Consent States

Just because Nebraska is a One-Party Consent State does not mean that you are in the clear if you live in Nebraska.  Not all 50 states have One-Party Consent laws when it comes to recorded conversations. In fact, about a dozen States (including Illinois and California) have Two-Party Consent laws. This means both parties need to be aware of the fact that their conversation is being recorded in order for it to be legal.  For a full list check out this website or this site.  Iowa, Kansas, and Colorado are "One-Party" consent states.

So, even if you may live in Nebraska, if you are recording your ex while they are residing in a Two-Party Consent State, you could potentially be breaking the law.

This is important because you could be found guilty of committing a crime which could result in monetary fees or even jail time.  Additionally, the recorded conversation will also have a difficult time being used in court because it was obtained illegally.

Recording Telephone Calls Between Your Children and Your Ex

It might be legal for you to record a call between you and your ex, but it could be a problem recording a conversation between your ex and your children.   If you are recording a conversation between your ex and your child, you are not a party to that conversation.  Thus, your consent to the recording is largely irrelevant.

And, because children who are under the age of 18 do not have legal capacity to consent to the recording, you may find yourself in a situation where you cannot meet Nebraska's One-Party Consent laws, even though your child[ren] are aware of the fact that you are recording them.

So, what should you do if you want to record conversations between your child[ren] and your ex?

You should advise your ex at the outset that you are recording the phone call, and you should do this each and every time that you record. This has the effect of putting your ex on notice of the recording, which could potentially absolve you of any criminal wrongdoing.

You should also ask for your ex’s expressed permission to allow you to record them, as this will eliminate any issues regarding Nebraska's One-Party Consent laws and will in all likelihood allow your recording to be used in court. Being on notice of a recording may not be considered by a judge to be the equivalent of consent.

As a warning, however, all parties should be aware of the fact that their decision to record the phone calls of their children with their ex could potentially backfire because some judges may consider your decision to record these calls as being adverse to your child[ren]’s best interest because it places them in the middle of an undesirable situation where they may feel uncomfortable about speaking candidly to their parent. This fact could, in turn, be used against you in court.

Before you start recording any conversations between either you and your ex or your children and your ex, be mindful of the possible repercussions of your actions. And, speak with a qualified attorney as to whether or not the recordings will actually have any impact on your case, because generally speaking, recorded calls are rarely ever the smoking gun of any domestic relations action.

Angela Y. Madathil
Lincoln and Omaha Divorce Lawyer

3800 VerMaas Place
Lincoln, NE 68502

1625 Farnam Street #830
Omaha, NE 68102

 angela@madathil-law.com
 Madathil Law Firm's Website

 T: 402.577.0686
 F: 402.415.0635

This blog does not constitute legal advice.  The advice an attorney provides is based on the specific facts of your situation.  Reading this blog entry does not create an attorney-client relationship between you and the author.

Image from here.

2 comments:

  1. IS BAPTISM AN OUTWARD SIGN? YES!

    Is water baptism an outward sign of an inward grace? Yes, in order to accept God's free gift of salvation men must be immersed in water.

    Acts 2:38 Peter said to them, "Repent and each of you be baptized in the name of Jesus Christ for the forgiveness of your sins; and you will receive the gift of the Holy Spirit.

    The outward sign is the immersion in water. The inward grace is the forgiveness of sins we receive by following the command of Jesus to be baptized in water. There is no inward grace granted until men are immersed in water baptism. Baptism is not a sign that we have already been saved. Baptism is a sign that believers in Christ are being saved.

    1 Peter 3:20-21 ....safely through the water. 21 Corresponding to that, baptism now saves you---not the removal of dirt from the flesh, but an appeal to God for a good conscience---through the resurrection of Jesus Christ,

    The outward sign is water baptism. The inward grace is that baptism saves through an appeal to God, through the resurrection of Jesus Christ. If men do not confess Jesus as Lord and Savior, believe that He is the Son of God and believe that God raised Him from the dead, and make the commitment to turn from sin and turn to God, then, of course your baptism will not save you. Baptism is the final step before receiving forgiveness of sins. Water baptism is the point that the blood of Jesus washes away your sins.

    Colossians 2:12-13 having been buried with Him in baptism, in which you were also raised up with Him through faith in the working of God, who raised Him from the dead. 13 When you were dead in your transgression and the uncircumcision of your flesh, He made you alive together with Him, having forgiven us all our transgressions,

    The outward sign is being buried with Jesus in the watery grave of baptism. The inward grace is being made spiritually alive with Christ, having our transgressions forgiven. We are dead in our transgression before we are buried with Christ in water baptism. We are made alive and have our transgressions forgiven after baptism, not before.

    Galatians 3:27 For all of you who were baptized into Christ have clothed yourselves with Christ.

    The outward sign is water baptism. The inward grace is being clothed with Christ. You are not baptized into Christ because you have already been clothed with Christ. The clothing does not precede, being baptized into Christ.

    Mark 16:16 He who has believed and has been baptized shall be saved; but he who has disbelieved shall be condemned.

    The outward sign is water baptism. The inward grace of salvation follows believing and being baptized in water.

    THERE ARE TWO OUTWARD SIGNS

    1. CONFESSION: Romans 10:9-10 that if you confess with your mouth Jesus as Lord, and believe in your heart that God raised Him from the dead, you will be saved; 10 for with the heart a person believes, resulting in righteousness, and with the with the mouth he confesses, resulting in salvation.

    The outward sign is confession. The inward grace is salvation.

    2. WATER IMMERSION: Mark 16:16....has been baptized shall be saved...

    The outward sign is baptism. The inward grace is salvation.

    IS WATER BAPTISM AN OUTWARD SIGN OF AN INWARD GRACE? YES, BUT WITHOUT THE OUTWARD SIGN OF BAPTISM NO INWARD GRACE OCCURS.


    What must I do to be saved? FAITH John 3:16 REPENTANCE Acts 2:38 CONFESSION Romans 10:9-10 BAPTISM Mark 16:16

    (All Scripture quotes from: NEW AMERICAN STANDARD BIBLE)

    YOU ARE INVITED TO FOLLOW MY BLOG. http://steve-finnell.blogspot.com

    ReplyDelete
  2. HOW WAS THE APOSTLE PAUL NOT SAVED? BY STEVE FINNELL

    1. The apostle Paul was not saved like the thief on the cross.
    2. The apostle Paul was not saved by saying the sinner's prayer.
    3. The apostle Paul was not saved by grace alone.
    4. The apostle Paul was not saved by faith only.
    5. The apostle Paul was not saved by baptism alone.
    6. The apostle Paul was not saved by confession alone.
    7. The apostle Paul was not saved by repentance alone.
    8. The apostle Paul was not saved on the road to Damascus.

    HOW WAS THE APOSTLE PAUL SAVED?

    The apostle Paul was saved like the three thousand that were saved on the Day of Pentecost. He was saved just like every person saved under the new covenant.

    What did Peter preach on the Day of Pentecost?

    1. John 3:16 Saved by faith.The apostle Peter preached Jesus as Lord and Savior.(Acts 2:36)
    2. Romans 10:9 Believe the resurrection of Jesus. Peter preached the resurrection.(Acts 2:25-35)
    3. Acts 3:19 Saved by repentance. The apostle Peter preached repentance. (Acts 2:38)
    4. Mark 16:16 Saved by water immersion. Peter preached forgiveness through water baptism. (Acts 2:38)(Acts 2:40-41)

    1. Saul (Paul) Believed and repented on the road to Damascus. (Acts 9:3-6)

    2. Saul (Paul) Prayed three days while on the road to Damascus, however, neither faith alone, nor saying a sinner's prayer was sufficient for him to have his sins forgiven. (Acts 9:9-11)

    3. Saul (Paul) had his sins forgiven after three days on the road to Damascus. Acts 22:10-16......16 'And now why are you waiting? Arise and be baptized, and wash away your sins, calling on the name of the Lord.(NKJV)

    Faith only advocates say that Saul's sins were forgiven because he called on the name of the Lord, not because of water baptism. That contradicts their own "faith only" belief that you are saved the minute you believe. Saul believed and repented three days prior on the road to Damascus.


    The apostle Paul was saved just like every other person that was saved or will be saved under the new covenant. 1. Faith, John 3:16 2. Confession, Romans 10:9 3. Repentance, Acts 3:19 4. Immersion in water, Acts 2:38, Mark 16:16

    NOTE: The thief on the cross was saved before the New Testament was in force. He was not saved on or after the Day of Pentecost. The new covenant was only in force after the resurrection and Ascension of Jesus.

    YOU ARE INVITED TO FOLLOW MY BLOG. http://steve-finnell.blogspot.com

    Posted by Steve Finnell at 8:19 AM No comments:
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