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Can My Spouse Spill the Beans in Court? Spousal Privilege in NC Civil Cases

Witnesses called to testify in court generally have to answer questions posed to them in direct or cross examination. An exception to the general rule protects communications made between spouses in civil cases in our state. NC Gen. Stat. §8-56 states that “. . . no husband or wife shall be compellable to disclose any confidential communication made by one to the other during their marriage.” If the privilege applies, it means the spouse who said something (i.e., communicated) can stop his or her spouse from testifying about that communication, even if the spouse wanted to testify about it. However, the spouse who is trying to assert marital privilege to keep the other spouse from “spilling the beans” has the burden of proof to convince the court the communication was privileged. 

Confidential Communication?

Not all communication between spouses is privileged. Privilege is only available when there was a “confidential communication” that is “induced by the marital relationship and prompted by the affection, confidence, and loyalty engendered by such relationship.” State v. Freeman, 302 N.C. 591, 598 (1981). In one case, for example, the court made a wife testify about threats her husband made to her, stating that he was going to burn the house down. Freeman v. St. Paul Fire & Marine Ins. Co., 72 NC App. 292 (1985). His communication was a threat, certainly not prompted by affection. The court must carefully consider the circumstances, not just rubber stamp any communication between spouses as confidential.

What About the Timing of the Communication?

There must be a valid marriage at the time the communication takes place. If the communication took place during the marriage while the spouses were living together, the privilege cannot be broken even if they later divorce. On the other hand, if the spouses remain married but are separated when the communication, it is a problem because it is unlikely the communication was prompted by affection, confidence and loyalty.

When is Spousal Privilege Denied?

When can the judge make your spouse spill the beans? Spousal privilege can be waived if the spouse who has a right to seek spousal privilege doesn’t object when the other spouse attempts to testify. If the communication involves child abuse or neglect, it is not privileged. Nor is it privileged in paternity cases. Communication in the presence of a third party during the communication can break privilege, with the assumption being that communications aren’t confidential if they were uttered while someone else was there. 

Amy A. Edwards is a family law attorney in Greenville, NC, certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of April 2016. www.AmyEdwardsFamilyLaw.com © 2016.  

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