The answer to this question depends on whether you have his or her consent. If you are seeking to record your spouse’s conversations in the context of divorce, it is very likely that you will notobtain (or seek) their consent. So, let’s approach the question above with that in mind.
In Georgia, it is unlawful for “[a]ny person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of anotherwhich shall originate in any private place.” O.C.G.A. § 16-11-62 (a). However, “[n]othing inCode Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to thecommunication has given prior consent to such interception. “ O.C.G.A. §16-11-66 (a).
In other words, it is not lawful for you secretly record your spouse’s telephone conversation unless you have his or her consent, or you are an actual party to the telephone conversation (you arerecording a telephone conversation between yourself and your spouse). Many individuals who are either considering divorce or those who are currently going through a divorce wish to secretlyrecord their spouse’s telephone conversations in order to obtain evidence of an affair, or to obtain other evidence that they feel may be to their advantage during the divorce litigation. Don’tdo it.
Not only will the “evidence” you obtain not be admissible in any court in Georgia, but you may also be criminally prosecuted for violating the above cited statutes. O.C.G.A. §16-11-67 and O.C.G.A. §16-11-69. In fact, violation of the law cited above constitutes a felony and, if you areconvicted, you may be “punished by imprisonment for not less than one nor more than five years or a fine not to exceed $10,000.00, or both.” O.C.G.A. §16-11-69.
If you suspect that you spouse has, or is currently committing adultery, or if there is other information about your spouse that you believe will be beneficial to you in your divorce case, speakwith your Georgia divorce attorney concerning tools such as the discovery process or the use of a private investigator. These tools will provide you and your attorney with helpful and legal meansto discover useful information vital to your case.
By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC