Marriage is a legally recognized relationship that is regulated by state
law. That is because marriage affords individuals certain benefits and
privileges that aren’t available otherwise. Married couples qualify
for certain tax and welfare benefits. In addition to these benefits, California
law recognizes certain privileges against forcing a spouse to testify
against the other spouse or disclose confidential communications made
However, what happens to spousal or marital privileges after a divorce?
This article discusses the nature and extent of these testimonial privileges
and the effect of divorce on their availability in some instances.
What Are the Marital and Spousal Privileges?
Under California Evidence Code § 970, one spouse may not be compelled
to testify against the other spouse. The policy behind this privilege
is to protect the institution of marriage, since forcing spouses to testify
against each other would seriously disturb their relationship. This privilege
broadly applies to prevent a spouse from testifying as to any facts that
can be used against the other spouse.
However, a spouse can legally break this privilege if he or she wished
to voluntarily testify against their spouse. This is exception exists
in recognition of the possibility that there is no marital harmony to
protect in situations where a spouse wishes to testify against their significant other.
Additionally, there is another privilege under Evidence Code § 980
that protects confidential communications between married spouses. Unlike
the privilege recognized under § 970, this privilege only covers
communications made in confidence between married persons.
What Happens to These Privileges After Divorce?
When spouses decided to get a divorce, the marital privilege under §
970 no longer applies. Therefore, a court can call someone’s former
spouse to testify against them in court after a divorce.
However, the privilege against disclosing confidential communications under
§ 980 does not terminate after a divorce. The privilege continues
to protect those secret communications that were made during the spouses’
marriage. As a result, the spouse against whom testimony is sought can
assert this privilege to block testimony from their ex-spouse regarding
confidential marital communications. Thus, even if a former spouse wanted
to testify against their ex concerning confidential conversations between
them while they were married, they may not do so against the wishes of
their former spouse.
However, there are several exceptions to the privilege protecting confidential
marital communications, including:
- Issues involving crime or fraud;
- Proceedings regarding the physical and mental stability of a spouse;
- Proceeding regarding a spouse’s competency;
- Proceedings between spouses, such as divorce; and
- Certain juvenile court proceedings.
Contact the Law Offices of Jeffrey S. Graff Today
If you are going through a tough divorce, you could benefit from experienced
legal advice. At the
Law Offices of Jeffrey S. Graff, you will be given personalized care and attention regarding your case
that addresses the unique circumstances surrounding your divorce. We are
dedicated to helping you achieve a favorable that fosters you and your
family’s best interests.
For a free consultation exploring the merits of your legal issues, call
(805) 633-4999 or
complete an online form about your case.