Family Law

What Is Spousal Privilege?

By Kristina Otterstrom, Attorney
Learn more about the marital privilege and how it works in the courtroom.

Understanding Spousal Privilege

The "spousal privilege” is the right to refuse to provide evidence or testify in a legal proceeding against your spouse. As the name suggests, a privilege is a special exception to the rule that you must give testimony when compelled by a subpoena. The marital privilege was enacted to encourage open communication in a marriage. Since spouses typically trust one another with their most private secrets and confidences, the law recognizes this long-standing protection for married couples. If anything you said to your spouse could later be used against you in a civil or criminal case, or if your spouse could be forced to testify against you, it could impact the marital bond.

There are two forms of the spousal privilege: marital communications privilege and testimonial privilege. Privileges aren’t automatic. In other words, you have to invoke (assert) the privilege, or waive (lose) it. For example, if you don’t object to your spouse’s testimony against you in a criminal case, then you lose the privilege and can’t claim it later. And it you disclose confidential marital communications to a third party (like a relative or friend), those communications lose their protection. Because there's a balance between protecting marital relationships and preventing harm, many exceptions apply to the two prongs of spousal privilege and certain criteria must be met before these privileges can be invoked.

Marital Communications Privilege

Either spouse can prevent the other from testifying about confidential marital communications. This privilege extends to both civil and criminal proceedings. However, this doesn’t mean you can’t testify about anything your spouse says. For example, you can’t use the privilege to get out of testifying in your divorce or answering questions at a deposition. Generally, to qualify as a marital communication the following criteria must be met:

  • the communication is a confidential subject
  • neither spouse has disclosed the communication to a third party, and
  • the communication occurred during a valid marriage.

The marital communications privilege can be invoked even after the marriage has ended, but communications made after the marriage ends are never protected. Statements made by one spouse to the other qualify as communications, but overheard conversations or observations don’t. For example, if one spouse hears the other spouse selling drugs, it won’t qualify as a protected marital communication. The spouse who heard the conversation is free to testify about the drug deal and the other spouse can’t invoke the privilege.

Testimonial Privilege

Unlike the marital communications privilege, the testimonial privilege lasts only as long as a couple is married. An ex-spouse can testify against a former spouse in a criminal or grand jury proceeding. When the privilege does apply, it prevents one spouse from being compelled to testify against the other spouse in a criminal case. Either spouse can invoke the privilege to prevent the testimony.

Nevertheless, some exceptions exist where compelling a spouse’s testimony is more important than preserving the privilege. For example, the testimonial privilege doesn’t apply in domestic violence proceedings, human trafficking cases, child abuse matters, or cases involving a crime against the other spouse or the couple’s children. If you have questions about the spousal privilege, you should speak with an experienced attorney in your area.

Questions for Your Attorney

  • I’ve shared a lot of personal information about my past with my spouse. Can I prevent this information from being used against me in a divorce?
  • My spouse has told me he sells drugs and uses them. Can I report him to the police or is this a marital communication?
  • I’m being charged with tax fraud, and my spouse was summoned to testify against me. How do I invoke my spousal privilege to prevent my spouse's testimony?

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