There are other devices that may limit the impact or admissions of fault evidence.
More generally, a spouse may also use the other spouse’s provocation or one’s own lack of willfulness as a defense to fault allegations where applicable. It may also be possible to keep certain evidence from being admitted at an alimony trial. Although spouses are now competent under North Carolina law to testify for or against each other, privilege law still provides possible obstacles to the admission of certain evidence.
For example, a provision in Chapter 8 of our General Statutes provides that “[n]o husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.” A confidential communication, “whatever it contains, [is] induced by the marital relationship and prompted by the affection, confidence and loyalty engendered by such relationship.”
Under this definition, a spouse who confesses adultery for the purpose of healing the marriage should be able to bar evidence of his admission of adultery under the privilege for confidential communications.
Conversely, an admission of adultery in the context of humiliating the other spouse should not be protected by the privilege.
Further, a party may invoke the constitutional privilege against self-incrimination in refusing to be compelled to testify about adulterous acts or other information which would furnish a link in the chain of evidence that could be used in a criminal prosecution. The right against self-incrimination is guaranteed by both the federal and the North Carolina Constitutions.
Moreover, the privilege against self-incrimination applies not only to the trial stage of civil or criminal proceedings but also to discovery and pleading. Where a spouse invokes the privilege against self-incrimination, the fact finder may infer from the refusal to answer that a truthful answer would have been unfavorable to the witness.
Case law, however, also now requires an adulterous dependent spouse to make a difficult choice. The adulterous dependent spouse can assert the privilege to shield himself or herself from criminal charges by refusing to answer questions concerning his or her alleged adultery; if he or she asserts the privilege, however, he or she will be held to have abandoned his or her alimony claim (because the fact finder can infer that he or she is barred). Alternatively, the adulterous spouse can waive his or her privilege and pursue his or her claim.
