In general, either spouse can testify in a ”no fault” divorce proceeding, in a fault-based divorce proceeding, in a property settlement hearing, or in proceedings relating to custody determinations. While such testimony can be highly relevant in a divorce proceeding, there are some rules (including the marital communications and anti-marital facts privileges) that come into play when considering the admissibility of such testimony.
Marital Communications Privilege
The marital communications privilege protects the disclosure in a civil proceeding of communications made in confidence between a husband and wife. Most states, however, provide a specific exception to this rule where the spouses are adverse parties, such as in a divorce proceeding. Additionally, if the communication was made in the presence of other persons, the privilege would not protect the disclosure of that information in actions between husbands and wives.
Anti-Marital Facts Privilege
There is also an anti-marital facts privilege, in which facts that the testifying spouse learned as a result of marriage to the non-testifying spouse are privileged and may not be disclosed unless the privilege is waived. The privilege can be waived only by the non-testifying spouse. Most states do provide for an exception to this privilege for actions between husband and wife.
There are some states, however, which do not provide for an exception to the anti-marital facts and confidential communications privileges; courts in those jurisdictions have sought to limit the privileges’ effect in matrimonial cases. For example, testimony describing instances of cruel treatment as grounds for divorce is not privileged.
While the marital communications and anti-marital facts privileges can protect the disclosure of some communications between spouses, the privileges generally are inapplicable when the husband and wife are adverse parties in a legal proceeding, including proving grounds for divorce or annulment, as well as in custody cases.