Not Quite Family Law: Spousal Privilege 101

Normally, as a family lawyer, the topic of spousal privilege isn’t one that comes up all that often — but it has been relevant to a couple of our clients over the past few years, and somehow, in the wake of Valentine’s Day, it seems particularly apropos. So let’s talk about how spousal privilege works. (A ‘privilege,’ in legal terms, is a legal exemption to the law that says “If you are called as a witness in a trial, you must testify.”)

If you know that your spouse committed a crime, and you don’t particularly support them in their criminal act, you might be asking yourself: “Can I even testify against my spouse? Isn’t there some kind of law about that?”

Well…yes and no. There are actually two separate laws that often get lumped together under the term ‘spousal privilege.’

• Spousal Testimonial Privilege is the rule that says “You cannot be called as a witness against your spouse, even if you know they committed a crime, unless you agree to be.”
• Martial Communications Privilege is the rule that says “Things you say to your spouse in private cannot be shared in court unless you agree to it.”

Both of these rules apply in both civil and criminal court, as they are intended to preserve the sanctity of marriage. In Michigan, there is a third rule within the same ‘area’ of law that is not considered a privilege but is still relevant: in a case involving your spouse’s or your own alleged adultery, you are not considered competent to testify. So even if you wanted to, you cannot. Note that this works both ways — neither spouse is competent to testify in an adultery case relating to either spouse.

Exceptions to the Privilege Rules
Like almost all laws, there are several exceptions to the martial privilege rules. They do not apply to any case in which:

• Either spouse is filing suit against the other for divorce, annulment, separation, desertion, or abandonment,
• Either spouse is accused of injuring or wronging the other,
• Either spouse is accused of failure to provide spousal or child support,
• Either spouse is being prosecuted for bigamy,
• Either spouse is accused of a crime against any person under 18 years of age, or
• In certain kinds of property dispute involving the private property of each spouse (as opposed to the martial property of the couple.)

In these exceptions, the court absolutely can (and usually will) call upon one spouse to testify against the other, and all private communications between the two will be fair game for the court.

Divorce
Divorce’s effects on spousal privilege are simple: you can’t be called as a witness to any events that occurred while you were married, and you can’t be forced to testify about any communication that occurred while you were married. Anything that comes after the divorce order is signed is fair game, and of course, you can still testify voluntarily if you desire.