In divorce, custody/visitation and support matters, a party may wish to intercept wire, electronic or oral communications of the opposing party to gain an advantage in court. Be careful before recording such communications, as you may be violating the following provisions of Section 19.2-62 of the Code of Virginia, 1950, as amended:

A. Except as otherwise specifically provided in this chapter any person who:

1. Intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept, any wire, electronic or oral communication;
2. Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical or other device to intercept any oral communication;
3. Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, electronic or oral communication knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
4. Intentionally uses, or endeavors to use, the contents of any wire, electronic or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; shall be guilty of a Class 6 felony.

Pursuant to Section 18.2-10 (f.) of the Code of Virginia, 1950, as amended, a class 6 felony is punishable by a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

Notwithstanding the aforesaid provisions, Section 19.2-62 B.2. of the Code of Virginia, 1950, as amended, provides that it is not a criminal offense under this chapter for a person to intercept a wire, electronic or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

Although you may be a party to the communication which is intercepted or one of the parties to the communication has given prior consent to interception, there are limitations to use of telephonic conversations in evidence. Pursuant to Section 8.01-420.2 of the Code of Virginia, 1950, as amended, no mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action, and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage. The parties’ knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded.