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Wheaton, IL divorce lawyer for discoveryIf you are like the vast majority of adults in Illinois, you probably have a cell phone, computer, tablet, or all three. Most of these devices can record audio and video at the press of a button. It can be very tempting to make use of this ability during divorce – especially if your spouse’s behavior is much different behind closed doors than it is in public. You may wonder, “Can I record my spouse and use this recording as evidence during my divorce?”

Illinois Law Regarding Recording a Conversation

Most states are one-party consent states. This means that it is lawful to record a conversation between two people if at least one of them knows that the conversation is being recorded. For example, you could record yourself speaking on the phone to someone else because you know that you are recording. Illinois, however, is an all-party consent state. This means that both you and the other party need to provide consent for a recording to be legal. Recording someone without their permission may be considered a Class 4 felony offense in Illinois.  However, there are several exceptions to Illinois laws regarding eavesdropping and recording.  

Defining “Surreptitious” in the Context of Eavesdropping

In 2014, the Supreme Court of Illinois ruled that the eavesdropping statute was unconstitutional. The law has since been amended. You may not record conversations if the conversation takes place in public, and the participants have no reasonable expectation of privacy. However, you may record conversations that are open and obvious. Eavesdropping is now defined as overhearing or recording private conversations without consent in a “surreptitious manner.” This means obtaining a recording via “stealth or deception” or recording through “secrecy or concealment.”

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