Most people are familiar with the idea that a person cannot be made to testify against their spouse in court. While this is typically true during the marriage, divorce can have different effects on that privilege.
Traditionally, the rules of evidence at common law provided that confidential communications between a husband and wife were privileged and a court could not compel one spouse to testify against the other. In North Carolina, the privileges afforded to spouses are determined by State statutes. This testimonial protection can be divided into two privileges: spousal testimony and spousal communications.
Spousal Testimony
Spousal testimony applies in criminal cases. It represents the previously mentioned protection against forcing a spouse to testify against another. For this privilege to be in effect, the couple would have to be married at the time of the criminal trial. Further, it is the witness-spouse who holds the privilege. They are also free to waive it.
Spousal Communication
Meanwhile, spousal communications can be applied either in criminal cases or civil cases. This privilege protects any communications made between spouses during a legally valid marriage. It does not matter whether the couple is married at the time of the trial. Both spouses have the privilege to refuse to disclose the communications, and the court will not make a determination about the “quality” of the marriage.
The Effect of Divorce
The effect of divorce on these privileges depends on the privilege at issue. For spousal testimony, the entire privilege is lost at the time of divorce. In a criminal case, even if the marriage ended on good terms, a former spouse can in fact be made to testify against you.
Meanwhile, the effect of divorce on the spousal communication privilege is not so severe. Despite the divorce, whether it was on good terms or bad, the privilege survives and protects either spouse. However, any communications made after divorce are not privileged. Further, there are several exceptions under which the privilege will not apply in North Carolina. These include crimes by one spouse against the other, child support, child abuse, and joint tax fraud. Additionally, while the presence of a third party to the communication typically destroys the privilege, courts have held that the presence of a minor child or a clergy member when the communication was made does not destroy the privacy of the communications.
In Divorce Proceedings
In divorce proceedings, the privilege becomes trickier. North Carolina statutes have not made an exception for divorce cases or alimony hearings. Courts have determined that the confession of an extramarital affair in order to help heal the marriage will not be admitted. However, if the confession is an attempt to humiliate the non-adulterous spouse, it can be admitted into evidence. A party can also invoke the constitutional right against self-incrimination (or “plead the fifth”). If the adulterous spouse is also the dependent spouse, they can choose to invoke the right in a criminal proceeding. This can prevent them from losing an alimony claim that they otherwise would have had a right to.
Regardless, when involved in civil proceedings, especially for divorce, alimony, and child custody, consulting with a Raleigh divorce lawyer is your best bet to understand all your rights under the law. Your Raleigh divorce lawyer will be able to give you the best idea of whether your former spouse may reveal a communication or be compelled to testify against you.
