Legal Lesson - Spousal Privilege as it relates to a parties new spouse in a modification proceeding


A spouse is competent to be a witness in any civil or criminal action in which the other spouse is a party or is otherwise interested.  However, either spouse may refuse to disclose, and may prevent another from disclosing communications that were intended to be confidential between spouses and that were made during the marriage. Marital communications are privileged regardless of whether they arise incident to a marital relationship, and even apply to communications in furtherance of a crime.

The privilege applies to sign, gestures, spoken or written statements between a husband and wife.  The privilege does not apply to observations  of facts or actions, which would constitute knowledge gained other than through confidential communication (ex. Spouse can’t be an witness other spouse commit murder and claim spousal privilege, since the knowledge of the murder was not gained through communication of the parties).  The privilege also does not exist to show that the act of communication took place because it is not disclosing the substance of the communication (ex. Proof that one spouse called another spouse at a certain date and time).  Further, communications that a spouse knew or should have known were being overheard by a third party are not privileged (ex. Spouse discussing information in a crowded restaurant).

Communications made between spouses while they are married remain confidential, even after the marriage is resolved.  However, communications before the parties are married or after they are divorced are not privileged.

The privilege cannot be claimed by a spouse during a divorce proceeding because it is an action brought by one spouse against the other.  The privilege also does not apply in criminal proceedings where one spouse is the victim of the other.

The plain meaning of the statute indicates that In a modification proceeding, if one of the parties has since remarried the spousal privilege would apply between that party and their new spouse.  Therefore, confidential communications between the spouses would be privileged.  However, the privilege would not protect bank records, bills, financial accounts, information regarding employment, or other similar information that could be received from an outside source because it would not be confidential communication between the parties.

Applicable Statute:

Fla. Stat. 90.504- Husband/Wife Privilege

Bolin v. State, 650 So.2d 19 (Fla. 2d DCA 1995)(Court held that a discovery deposition taken of the defendant’s wife by the defense attorney did not waive the spousal privilege)

Full Document Can Be Obtained From Here.

By Kenny Leigh

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