Illinois Eavesdropping Law Expanded, Affects Illinois Divorces

Effective December 31, 2014, a new eavesdropping law went into effect in Illinois.  The previous version of the law was struck down as unconstitutional and since, there has not been an enforceable eavesdropping statute.

The new law continues to require the consent of all parties in order to record a conversation.  In this way, it maintains much of the prior law.  There are exceptions for conversations that the participants cannot reasonably expect to be private.  This appears to be the change the legislature hopes will make the new statute constitutional.

Recordings made by eavesdropping are specifically excluded from use as evidence.  The statute states:

Admissibility of evidence. No part of the contents of any wire, electronic, or oral communication that has been recorded or intercepted as a result of this exception may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision of the State…

There are some exceptions, but none that would apply to a divorce case.  Surreptitiously recorded evidence will now, again, present the dilemma of knowing a fact but likely being unable to prove the underlying facts.  Further, pursuant to the Illinois Domestic Violence Act, keeping your spouse under surveillance remains a basis for an order of protection.

Divorce cases, unfortunately, often involve “he said, she said” situations and many litigants either misremember or outright lie when testifying before the court.  In Illinois, gathering evidence of harmful statements or evidence remains difficult and the revision to the current law, prohibiting even a participant to the conversation from recording the conversation, continues to limit the ability to bring more concrete evidence of statements against a party’s interests.

Of course, the new law will be important for law enforcement, but the law will also have a significant impact on divorce cases in Illinois and McHenry County, especially where the facts regarding spousal support, maintenance, child custody, visitation, or financial issues regarding child support are hotly contested.  All divorce lawyers in Illinois and McHenry County should closely review the new statute and be aware of possible criminal liability for violations (violating the eavesdropping statute is a class 4 felony).  If you are in an Illinois divorce, be aware of the limitations on your ability to record your spouse or others.