What is the Spousal Communication Evidentiary Privilege?

If you have a business, there are probably a lot of people that you confide in. One of those people may be your spouse. But as you are discussing private information with him or her, and what you did or didn’t do, or what your thoughts are on things…have you ever had concern that one day, if you are the subject of litigation, that he or she could be called to testify against you?

The Spousal Privilege

The good news is that you don’t have to worry about that completely because of what is known as the spousal privilege. The spousal privilege says that communications between married spouses (which includes same sex spouses) can never be disclosed to anybody, so long as a spouse wishes to keep it private.

Practically, that means that an attorney (or anybody else) can’t ask you or your spouse what he or she said to you, or what you said to him or her, about any matter at all. That includes all forms of communication, written, oral, or even non-verbal, so long as it is communication between the two of you.

The privilege even survives the end of your marriage so long as the communication that is being asked about happened while you were married.

Practically, if you get divorced, your ex may want to talk, or to disclose information that could be harmful to you. You can still ask that the information be kept private. Your attorney would have to file a motion with the court, and object to any questions posed to your ex, that may reveal communication between spouses in the marriage.

When the Privilege Does Not Apply

There are some times where the privilege does not apply—that is, where communications between spouses can be forced to be revealed.

One time when the privilege doesn’t apply is in proceedings that involve crimes, violence or lawsuits between a husband and a wife, or in any action between the spouses, such as divorce or paternity cases. This may include divorce, or domestic violence situations.

The privilege also doesn’t apply to gestures or certain actions. So, for example, a wife could be asked what a husband did or did not do, or what course of action a wife took—things that aren’t direct communications between a husband and wife, even if those actions may potentially harm the other spouse.

Waivers in the Business Context

Just like all evidentiary privileges, there are times when the spousal privilege may be lost or waived. Often this is done accidentally, such as when a spouse tells a third person what the other spouse said, or when a spouse makes public information that should be private – for example, forwarding an email from a husband or wife, to someone else.

That often happens in businesses where the husband and wife work together. If a husband CEO emails his wife, the company CFO, and cc’s the company Vice President, whatever spousal privilege would have applied, is now gone-that Vice President was included on what would have otherwise been, a private communication between a husband and wife.

Contact the West Palm Beach commercial litigation attorneys at Pike & Lustig for support with your business law case.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0090/Sections/0090.504.html