The term “privilege” is used to describe communications between two individuals. Most commonly, this refers to the privileged communications between doctors and patients or attorneys and their clients. However, there is also marital privilege, protected speech between spouses. When spouses get divorced, this privilege changes in very noteworthy ways.

The core idea behind marital privilege is that spouses have a right to discuss private or confidential matters between them without that information being compelled by a court. Marital privilege has two parts: criminal and civil. 

The first facet of it protects spouses from being compelled to testify against one another in a criminal proceeding. This right has to be asserted and does not automatically activate. If a spouse does choose to use marital privilege to refuse to testify, that protection cannot be removed unless the spouse voluntarily chooses to remove it at some later date.

In civil litigation, marital privilege can be employed to conceal any words or acts that were intended to remain private. If the opposing side wants to pierce these protections and gain access to the acts or communication, the law burdens them with proving that the acts or communication were not actually intended to be private. 

Marital privilege is not, however, an impenetrable defense. Like all forms of privilege, marital privilege can only be used to protect communications or acts that have not been discussed with anyone else. If either spouse tells a non-privileged third party, such as a sibling or friend, that information is no longer considered private. Similarly, if a third party were to overhear the communication, that could also be grounds to argue that the conversation was not only between the spouses and therefore could not be protected by privilege.

The other limitation of marital privilege lies in its premise. Since marital privilege only applies to spouses, if those spouses separate, the privilege will no longer apply to any future communications or acts. While any acts or communications that remain private through the divorce can still receive protection, any disclosures during the divorce can be used to undo privilege. 

While divorced spouses do not gain protection from privilege, the courts will not judge the health of a marriage and therefore spouses who are legally separated, in mediation, or have not finalized divorce proceedings may still retain the benefit of marital privilege. 

If you feel that your right to marital privilege has been violated, you will need an experienced divorce & family law attorney to fight for your rights. A good divorce & family law attorney can preserve the record where the potential violations occurred and have them struck after the fact if the opposition did not actually meet the burden of proof necessary to reveal that information. The best place to find a divorce & family law attorney is with Attorney at Law.

At AAL, our nationwide network of attorneys and law firms can match you with the best attorney in your area. Our partners have the resources, legal expertise, and experience to get you the best possible outcome for your case.

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