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Issues to consider in Developing Evidence

Most divorces involve allegations that one spouse has acted in a manner that has caused the destruction of the marriage.  Often the spouse accused of improper conduct denies the allegation thereby creating a he-said she-said dilemma over which spouse is telling the truth. In such cases, many parties yield to the temptation of trying to catch the other souse in the wrongful conduct by making secret tape recordings and/or having clandestine photographs taken for use  in the divorce trial.  However, while such photographs and tape recordings can be very beneficial and they are often used in divorce trials, if you have determined to try to develop such evidence in your case,  you must be aware that you must carefully follow the law in making any tape recordings and /or in taking photographs of your spouse. In certain circumstances it is a state and/or federal criminal offense to tape record your spouse and/or to photograph your spouse without his or her knowledge, permission and consent.  such acts by you, or another who is acting on your behalf, may also subject you to a civil suit.  Under Tennessee law, you cannot legally tape record your spouse if you are not a direct party to the conversation with your spouse.  however, you are legally permitted to record your conversation with your spouse without his/her knowledge and permission if you are a direct participant in the conversation. in such a conversation between you and your spouse, if your spouse was to acknowledge that they had cheated, or that they had otherwise acted inappropriately, that admission could be used in the divorce trial as evidence of the act.  Tennessee law similarly holds that it is illegal to photograph your spouse and/or another person if he/she is in a place where he or she maintains a reasonable expectation of privacy. It is also a crime to hire another, such as a private investigator, or to enlist the aid of a friend or a relative to take such photographs for you if the photographs violate the reasonable expectations of privacy  held by your spouse and/or your spouse and another who appears in the photographs. You should always discuss these issues with knowledge legal counsel before either undertaking efforts to record and/or photograph your spouse and any other person.  Nothing in this synopsis is intended to suggest not to encourage either tape recordings nor photographing your spouse.  This summary is provided only to address the law on these issues as they frequently arise in divorce proceedings.

JMMiller@batsonnolan.com