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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Loose lips sink ships, less is more, mind your business, and be nice or at least indifferent. All good advice, given everyday and routinely ignored.
Coping with litigation, especially family law litigation, is tough. “Venting” is common and can be therapeutic,(click here for dealing with stress) but be careful who you vent to. If it is done to the wrong person it will come back to bite you. But…you say, “I am only telling the truth.”
The truth is if your cheating spouse loses his job everyone is worse off. The truth is if your spouse, who is a sorry parent because they are more interested in going to the Electric Cowboy, is vilified in front of the children it will be harmful to them. (They will know in time. An exception may be made if the parent’s sorriness affects the children’s actual safety).
Also, telling people your business does not bode well for reconciliation. Telling your “friend that has been through this” what a crummy guy he is, how sorry he is, and how abusive he is, means you and that “friend that has been through this” will NOT be friends when you and Mr. Sorry get back together. I know what you are thinking, “No chance in hell of that,” but stranger things have happened…
So who can you vent to?
- Your Lawyer. We are paid to listen, counsel and advise…though we all have our limits.
- Your Counselor. It’s their job, too. They listen, do not judge and can offer coping mechanisms. Don’t have a counselor? Ask your lawyer.
- Your Preacher. They have heard it before and are very familiar with Sodom and Gomorrah and fire and brimstone. Your situation is probably not that bad.
- Your Momma. I don’t mean this in the slang sense. Really, speaking with a parent, or other trusted adult, can help, even if you are a grown-up, yourself. Just be careful because what you say to a lay person is not protected by attorney-client privilege, doctor-patient privilege, nor priest-penitent privilege. (I have less concern about you telling your mom how sorry he is because deep down mom always “knew” it).
- Your Friend that has been through it. This can be a great resource of knowing what to expect and leaning on a sympathetic ear. Be careful here, too, as there is no privilege and she could be playing both sides, and reconciliation means y’all likely won’t be friends.
Be sure you let your attorney know who you are talking to. They need to know. They may have represented that friend, or otherwise been involved in that case, and may have some insight as to whether you should be talking to that person.
Matthew Thompson is a family law attorney that knows how to keep quiet about your business. Confidentiality and privilege are two things taken very seriously at TLF.
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