What Is the Effect of Divorce on Spousal Privileges?

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 during marriage.

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.

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