Using Video Recordings in a Divorce: Is it Legal?

Updated on December 13, 2016

Video Evidence in Contested Divorces

During a contested divorce proceeding, you may be able to admit video recordings into evidence to support your claims. Indeed, with the rise of iPhones and other smart phones, video evidence is becoming increasingly common in divorce cases. However, before video recording can be submitted as part of your case, you must be certain that you obtained these recordings legally and that they are relevant to your case. Because each state has its own laws governing divorce procedures and allowed methods of obtaining evidence, consider consulting an attorney or other reliable legal resource before attempting to submit video recordings in your divorce trial.

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Obtaining Recordings for Your Trial

In order for a video to be admissible in court, you must make sure that you obtain it legally. The Electronic Communications Privacy Act dictates how one may obtain “electronic documents”—such as a video recording stored on a computer, sent by email, or stored on a smart phone. Generally, if you just stumble upon an electronic video, for example, one stored on a computer you share with your spouse, this would likely be admissible in court, provided that it is pertinent to your divorce case. Likewise, if your spouse gave you her email password and gave you free access to her account, then a video you find in her inbox may be admissible. On the other hand, if you guessed your spouse’s password or used her personal computer while she was asleep or used a key logger to obtain her password, then any videos you find may not be admissible in court. In other words, if you were "snooping" in your spouse's phone or computer to try to find evidence, then you may not be able to submit the evidence to the court or, in some states, may be in violation of criminal statutes. Thus, it is important to access only those files that your spouse has given you express permission to view--or that are on a computer or phone that you both share. Since you may face criminal penalties for illegally obtaining electronic data, such as videos your spouse has on his or her private smart phone, consider consulting an attorney to verify whether your evidence is legal before you present it to the court. Giving the judge illegally-obtained evidence may not only hurt your case, but also lead to criminal punishments.

Applicability to the Divorce Case

General evidence rules hold that evidence must be material to a case in order for it to be admissible in court. In other words, the video has to touch on the issues of the divorce case that you or your spouse outlined in the divorce petition. For example, if you are trying to establish adultery in your divorce case and have a video recording of your husband and another woman, the court would likely consider the video material evidence since it backs the main issue at question in your divorce case. That said, if you are filing for divorce on the grounds of abandonment, an old video of your spouse with another woman may not be admissible because it is not material to the main questions of the divorce case. In other words, adultery is not a material issue in an abandonment case, even though it may have contributed to the downfall of your marriage.

In some instances, the court may allow videotaped evidence that establishes evidence of the spouse’s character, but is not directly related to the case—for instance, a video of an angry spouse yelling, but not acting abusively. Not all judges will allow admission of such character evidence, however. It is up to the individual judge to determine whether character evidence contributes to the case in a substantial way that relates to the facts you or your spouse outlined in the petition.

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Child Testimony and Video Recordings

If you and your spouse are disagreeing on the issue of child custody, the court may accept videotaped testimony from your child in some instances. In states where the court considers the child's opinion in making a custody determination, the court may ask for video recordings of the child's wishes instead of asking the minor to "take sides" against his or her parents in the courtroom. In most cases, this video testimony will take place in the office of a guardian ad litem or in the judge's chambers.

Video evidence can abuse be useful in abuse cases. For example, in cases involving young children or older children who may have suffered abuse and would ensure further trauma by testifying in court, the judge may accept a videotaped deposition or statement, provided that the video recording was made according to state evidence rules—for example, using official procedures of the office of a guardian ad litem or general procedures of videotaped depositions.

That said, the court will generally not accept home videos of children stating which parent they want to live with as part of the trial evidence. This is to ensure that the child is not unduly influenced by a parent or other family member.

The court may also choose to use video evidence of your child's testimony instead of asking him or her to talk in court even if you, your spouse, and the child agree to the testimony. In these cases, the court may simply be trying to protect the child's best interests, one of the primary factors in how judges determine custody.

Spousal Notification and Divorce Court Evidence

Under some state laws, you will need to notify your estranged spouse of your intent to use videotaped recording as evidence in your divorce case. This must be done prior to the trial. For example, in Virginia, if you have a video recording of your child making a statement about alleged sexual abuse by your spouse, then you must notify him in advance. Thus, if you have evidence that you think could potentially support your case, present it to your attorney as soon as possible so that she can verify your state’s laws on its admissibility as well as serve it on your spouse, if required by your state’s evidence laws.

The rules of evidence vary between states, but in some instances, your spouse and his or her attorney may have the right to review the video and receive a copy of it prior to the trial. You may also be asked to explain, in detail, how you obtained the video recording.

Stumbling on Evidence

Have you ever found incriminating material on your partner's phone or computer?

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Representing Yourself: How to Use Evidence in Your Divorce Trial (and Object to Your Spouse's Evidence)

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