The Law offices of Arnold & Smith - John Price Carr House
You cannot reason with the unreasonable;
When it is time to fight,
WE FIGHT TO WIN.

Our office continues to operate during our regular business hours, which are 8:30 am - 5:30 pm, Monday through Friday, but you can call the office 24 hours a day. We continue to follow all recommendations and requirements of the State of Emergency Stay at Home Order. Consultations are available via telephone or by video conference. The safety of our clients and employees is of the utmost importance and, therefore, in-person meetings are not available at this time except for emergencies or absolutely essential legal services.

Spousal Privilege

The idea that you have found your true “partner in crime” is one of the allures of any marriage. Thanks to the spousal privilege, there is more truth to the colloquialism than many people realize: you can literally be partners in crime and not be forced to testify against one another in criminal proceedings. Spousal privilege covers more than just this scenario, however. There are two different types of spousal privilege: the testimonial privilege and the communications privilege.

Spousal Testimonial Privilege

As mentioned above, the spousal testimonial privilege protects a person from being forced to testify against their spouse in a criminal case.

Spousal testimonial privilege only applies while a couple is still married—the privilege dissolves when one of the parties files for divorce. However, it is possible to invoke the testimonial privilege in a criminal case if the couple did not marry until after the alleged commission of the crime.

Exceptions to testimonial privilege

North Carolina state law provides several different exceptions where a spouse can be compelled to testify against the other in a criminal action:

  • In a prosecution for criminal cohabitation or bigamy, to provide proof that the two are married
  • In a prosecution for communicating a threat to or assaulting the other spouse
  • In a prosecution for trespass in the separate land or residence of the other spouse if the two are living separately
  • In a prosecution for failure to provide support to the other spouse or their child or abandonment
  • In a prosecution of one of the spouses for any other criminal offense against either spouse's minor child

However, even in the situations above, spouses cannot be compelled to testify regarding communications covered by the spousal communications privilege.

Spousal Communications Privilege

The communications privilege protects communications between spouses as confidential in both civil and criminal cases.

Privileged communications made during the marriage remain confidential if a couple divorces, although conversations between two former spouses after divorce are not. For the spousal communications privilege to still protect statements made during the marriage, it does not matter whether the couple is still married at the time of the civil or criminal trial.

The spousal communications privilege serves to protect private communications between the two throughout the duration of the marriage, even past the event of divorce. The North Carolina Supreme Court has described the test of whether a spousal communication should be confidential depends on whether or not it was prompted by the marital relationship and the confidence, affection and loyalty that such a relationship engenders.

By this definition, if a spouse confesses to the other that they cheated in an effort to heal the marriage, this would be a privileged communication. However, if the spouse confessed adultery in an effort to humiliate the other spouse, this would not be a privileged communication. Intent behind the communication can be key.

The spousal communications privilege applies to private conversations between spouses where the parties had a “reasonable expectation of privacy,” or were not reasonably likely to be overheard. If a third party is present for a communication, this typically waives the privilege. However, our courts have held that the presence of a clergy member or minor child does not destroy the privacy of spousal communications.

Special rule for the spouse who:

  1. confesses to adultery
  2. would/will be the recipient of alimony (as opposed to the supporting spouse)
  3. and is facing criminal charges

Such a spouse can assert the spousal communications shield to refuse to answer questions concerning their adultery if it is to shield themselves from criminal charges. However, if they assert the spousal privilege in this instance they waive their alimony claim. Alternatively, they can choose to waive the spousal communications privilege and proceed with their alimony claim.

Other Exceptions to the Spousal Communication Privilege

Even if a reasonable expectation of privacy exists, there are several other circumstances under which the spousal communications privilege will not apply. If one spouse is the victim of a crime committed by the other spouse, the spousal communication will not apply in the offender spouse’s criminal trial. In addition, communications are not privileged in cases of joint tax fraud, child abuse and child support.

If you have a family law issue such as divorce, it is important to speak with an experienced family law attorney who can advise you of your options and help guide you through the process. Arnold & Smith, PLLC is a multi-practice civil and criminal litigation firm serving Charlotte, North Carolina and the surrounding areas. Contact us today to schedule and initial consultation with one of our dedicated and skilled family law attorneys.