Caldwell Kearns Family Law: Marital Privilege and Divorce

Generally, any forms of interaction between the parties involved in the divorce process can receive coverage during their union, but this kind of situation usually ends when the courts dissolve the relationship or marriage. There are some legal loopholes or exceptions that both parties can take advantage that will provide their ex-partners with the ability to subdue testimony, but this privilege in rules no longer apply when it comes to divorce (in most cases).

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What is a marital privilege?

When two parties that are bounded by a legal union communicate between them confidential private matters or secret, the details can remain a secret out of criminal or civil proceedings if the marital benefit is invoked by one of the spouses. It is the concept that both parties can protect each other from any forms of communications within the legal union and from testifying against each other prohibiting any exception or when the marriage is dissolved.

Usually, privilege is feasible through either one the spouse that is outside of the proceedings or the person involved in the case invoke the protection from the other party. Law firms or attorneys can explain to their client how to cite it, what it will do and how to make it work to its maximum effect.

Invoking the marital privilege

When one of the spouses needs to invoke the marital benefit protection, they need to do it manually as it will not invoke automatically when in the courtroom. To stop the other party from testifying or protect any forms of communications that happened during the course of the marriage, from any kind of court case, they need to invoke the marital privilege at the start of the case.

The other party may not even find out what they can or cannot prevent testimony or provide information on the courts or when the opposing attorneys ask them to because of the marital benefit. The attorney that needs the communication details or the testimony might not even explain to their clients that spousal privilege can be invoked or is possible.

The legal dissolution of marriage with marital privilege

The protections that are invoked to stop both parties from speaking against each other in the courts are no longer present once the union is legally dissolved through divorce. The dissolving or dissolution of the marriage severs all the powers to invoke the marital privilege.

But any forms of communications that remain secret during the relationship may still preserve these protections and stop the other party from speaking about their spouse in a civil or criminal case. But the details need to always remain secret, confidential or private without giving the information to a third party at any point during the trial from either spouse.

Using the marital privilege after the dissolution of marriage through divorce

The use of marital benefit can end one both parties are no longer married through a divorce. But if their relationship is still bound by the law when the case was filed, the marital privilege can still be invoked even if the process of divorce has already started, but not yet completed.

For civil or criminal proceedings and trials, both parties must stay legally married in the place where the case is happening for the privilege to apply. But there is a big chance that any forms of communications may still be protected even if they are no longer legally married.

No matter if both are still in a relationship legally during the filing of the case, any forms of communications can remain confidential as long as the conversation remains secret or they are not relayed to a third party.

Divorce and the exceptions

This privilege will be over once the marriage is legally dissolved through divorce. Both spouses will be no longer in a legal relationship that the state recognizes; this will remove all the protection that is in place through the privilege. The exceptions of this exception are when all the details are no longer a secret because of disclosure by a third party or when a confidential issue is no longer a secret because someone hears them intentionally or unintentionally.

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When the union is over, both ex-spouses can’t use the testimonial advantage any longer. When the divorce process is completed, that is the time when the protections end. Both of the sides are legally separated and cannot be bound by the law anymore, that also applies to any benefits that they can get from being married.

But despite all of this, it is still important to contact a divorce lawyer to know if there are still other exceptions that can be applied like in a current civil or a criminal case that the other person is going through.

The legal counsel in marital privilege

The attorney that was hired for a civil or criminal case needs to explain to their client if this benefit can still be invoked or the protection remains based on individual circumstances or if it is no longer possible to invoke them because they are already divorced, and any legal obligations no longer bind both.