We hear a lot about attorney-client privilege, doctor-patient privilege and even priest-penitent privilege, but there exists a marital spousal privilege, though application can be limited and tricky.

A spouse to spouse communication is confidential if it is made privately by any person to that person’s spouse and is not intended for disclosure to any other person.  In any proceeding, civil or criminal, a spouse has a privilege to prevent that person’s spouse, or even a former spouse, from testifying as to any confidential communication between that person and that person’s spouse.  The privilege may be claimed by either spouse in that spouse’s own right or on behalf of the other.

This means that a husband can prevent a wife from testifying about something he told her in confidence.  It also means that an ex-husband can even prevent an ex-wife from testifying about something he told her in confidence, during the marriage.

So, you ask,“How can I testify about what my spouse said in my divorce case?”

Exceptions. There is no privilege under this rule in civil actions between the spouses (including divorce) or in a proceeding in which one spouse is charged with a crime against; (1) a minor child, or (2) the person or property of (i) the other spouse, (ii) a person residing in the household of either spouse, or (iii) a third person committed in the course of committing a crime against any of the persons described in (d)(1), or (2) of this rule. MRE 504.

Matthew Thompson is a family law attorney and warns you not to count on spousal privilege in a divorce action.  So be careful about the content of those sweet nothings that you are whispering.

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