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Limitations on Spousal Privilege

Limitations on Spousal Privilege

Spousal privilege, also known as marital privilege, prevents spouses or partners in a civil union from divulging confidential communications between them. New Jersey has codified spousal privilege in Rule 509 of the New Jersey Rules of Evidence and 2A:84-22 of the New Jersey Code. Spousal privilege is not absolute, however—it has limitations.

In this post, references to spousal privilege include partners in a civil union, but not necessarily partners in a domestic partnership. New Jersey law treats marriage and civil unions as equal in all respects that relate to spousal privilege. Nevertheless, New Jersey law is not clear on the issue of whether partners in a domestic partnership (as opposed to a civil union) enjoy spousal privilege.

Aspects of the Privilege

New Jersey spousal privilege comes in two forms—the spousal testimonial privilege and the marital communications privilege. 

Spousal Testimonial Privilege

The spousal testimonial privilege allows one spouse to refuse to testify against the other spouse in a criminal proceeding. The purpose of this prong of the spousal testimonial privilege is to prevent damage to the relationship by forcing one party to betray the other party in court. For obvious reasons, the testimonial privilege lapses when the couple divorces. Either spouse can testify against their spouse if they choose to, and the other spouse cannot stop them.

Marital Communications Privilege

The marital communications privilege protects confidential communications between spouses that occurred during the marriage. It applies to both civil and criminal cases, and its purpose is to encourage spouses to communicate with each other openly and honestly during the marriage. Unlike the testimonial privilege, both spouses must consent to waive the marital communications privilege. One spouse cannot waive it unilaterally.

In many cases, this prong of spousal privilege survives divorce or the termination of the marriage by death. The idea is that as a spouse, you will only communicate openly and honestly if you are confident that your spouse will keep your secrets even after death or divorce. Nevertheless, under the right circumstances, an estate executor can consent to disclosure on behalf of a deceased spouse.


Here are some exceptions that may apply to spousal privilege:

  • Both spouses consented to the disclosure.
  • Either spouse consents to disclosure in a criminal prosecution.
  • The communication relates to a legal action where the spouses are on opposing sides (divorce or child custody, for example).
  • The communications occurred before the spouses were married or after they divorced. 
  • The parties were separated but not yet divorced at the time of the communication.
  • A defendant spouse commits a criminal offense, such as domestic violence, against the other spouse or against a child of either spouse. 
  • The spouses acted as partners in an actual or planned crime or fraud at the time of the communication. In this case, a court can force disclosure without the consent of either spouse.

It is crucial to understand potential limitations on spousal privilege. 

Here are a few examples of how spousal privilege can affect  legal proceedings:

Divorce with Hidden Assets

One spouse hides assets during a divorce to avoid a fair distribution of assets. The other spouse cannot force the dishonest spouse to reveal confidential communications about his financial dealings. This could complicate the process of uncovering the hidden assets.

Child Custody Proceedings

A wife confides in her husband about her mental health struggles. If the couple later divorces and fights over child custody, the family court cannot force the husband to reveal the wife’s communications, even though the best interests of the child might be at stake. 

Wrongful Death Lawsuit

A husband dies in a car accident caused by an intoxicated driver. Before he died, the husband told his wife about a pre-existing medical condition that could have contributed to his death. His wife later filed a wrongful death lawsuit against the intoxicated driver as the executor of the husband’s estate. The court cannot force the wife to disclose the husband’s medical condition, potentially leading to the assessment of excessive liability against the intoxicated driver.

Don’t Try to Handle a Family Law Dispute on Your Own

If you are involved in a family law dispute such as divorce, child custody, or domestic violence, you almost certainly need a New Jersey family lawyer to protect your interests. This is likely to remain true even for ‘amicable’ divorces. Contact a New Jersey family lawyer today.

To learn more and get the help you deserve, call our divorce & family law firm in Red Bank. NJ at (732) 747-1882 or contact us online today.
You can also visit our law firm at 157 Broad St #111, Red Bank, NJ 07701.

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