Tag Archives: 5th Amendment

Pleading the 5th in Divorce

“I plead the 5th!”

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. –5th Amendment to the U.S. Constitution

In divorce cases pleading the 5th is not often invoked.  The reason is divorce cases are civil matters, by their nature.  Not civil in the sense that everyone is always nice, but civil as opposed to criminal.

When Can you Plead the 5th in a Divorce Matter?

When answering the question would involve you admitting to a crime.  Interestingly, adultery, or habitual fornication rather, is a crime in Mississippi. It is rarely prosecuted, but is a crime nonetheless.  Due to this you may invoke the 5th. However, you have not outsmarted the system.  Pleading the 5th in a civil matter creates a presumption that you did what was asked.  Or, at least the Chancellor can use it against you.

So, how does this play out? (envision a Courtroom)

Attorney:  Mr. Smith, it’s true isn’t is that you have committed adultery during your marriage to Mrs. Smith?

Mr. Smith:  I plead the 5th.

Attorney:  Let the record reflect that Mr. Smith has invoked his 5th amendment right against self-incrimination as it relates to a question about adultery and the Court may make an adverse inference against Mr. Smith for doing so.

Judge:  Duly noted.

Why do it then?  The witness does not have to disclose  the dirty details, name names, places, locations, or positions.

Pleading the 5th may not stop you from getting a divorce, but it may prevent bringing other persons down with you.

Matthew Thompson is a Divorce and Domestic Relations Attorney in the Magnolia State. Follow the blog:#BowTieLawyer 


Deposition Imposition; What is a Deposition?

Depositions are routinely taken in lawsuits, and are common in family law cases.  A deposition is a part of the “discovery” process where the parties or a witness are asked questions, under oath, outside of Court, so that the attorney will know what they will say when in Court.  You have heard the old maxim that an attorney should never ask a question that he doesn’t know the answer to, well the deposition is the mechanism where you can ask that question.  A wide variety of questions may be asked in the depositions even those that likely would not be relevant in Court.

Depositions are usually at the attorney’s office. The attorneys, the parties and a Court reporter are typically the only persons in attendance.  Depositions are transcribed and may be videotaped.

Questions about the witnesses education, work, finances and efforts with regards to the children are all fair game.  The dirty details of fault are also fair game. Naming names and being specific are part of the process too.  Depositions are a tool to gain information as well as pin witnesses or parties down on what their “story” is so that it does not “change” later.

I had an instance where I took the father’s deposition in a custody modification case. Both parties had remarried.  Step-parents always have a bull’s eye on their backs in custody modification cases. I made sure and asked the father several times and different ways if he had any issues with step-dad.  The answer was “No.”  Well, it took several months to get to trial. At trial the father tried to change his tune.  He attempted to say he had serious issues with step-dad and had for as long as he had been in the picture. I asked the father if recalled his deposition. He stuttered. I showed him the specific page and questions asked. He said he must have forgotten about the serious issues at the time of the deposition. Right.  He backed off on his assertions and the deposition “saved” the day.

Objections are rare in family law depositions, or at least less common than in trial.  They are typically limited to the “form of the question,” being made to preserve the right to object in the future, but the deponent usually still answers the question.  Questions regarding crimes, however, can be objected to and those are usually not answered – with the deponent pleading the 5th.  The 5th Amendment to the U.S. Constitution gives all persons the right to not incriminate themselves.  How does this come into play in family law? Adultery is a crime in Mississippi (blogged previously).

The bottom line in depositions is, while they are nerve wracking for the deponent, ultimately you are just answering questions and your job is to tell the truth and rely on your attorney.