Protecting Confidential Marital Communications

Communication is an instrumental part of maintaining a successful marriage. Among the top reasons that marriages fall apart include problems involving interspousal communication. Not only is open communication good marital advice, it is the law. This principle is evident in what is known as the confidential marital communications privilege.

The Marital Privilege Protecting Confidential Communications

Rule 509 of New Jersey’s Rules of Evidence provides that “no person shall disclose any communication made in confidence between such person and his or her spouse or civil union partner.” This is a broad privilege that both spouses enjoy. The law recognizes this privilege to preserve the marital relationship by freeing spouses of the specter of government-compelled testimony in court regarding information they reveal to each other in confidence.

The law recognizes that open and candid communication is an indispensable aspect of fostering the interpersonal intimacy that holds a marriage together. If spouses had to worry about the information they reveal to each other coming out in court, they would be deterred from opening up to each other about important matters.

Not only can one refuse to disclose confidential communications with their spouse, a person can prevent the other spouse from trying to voluntarily disclose such confidential communications.

Exceptions to the Privilege Protecting Confidential Marital Communications

Although the privilege against admitting evidence disclosing confidential marital communications is a significant right that spouses enjoy, this right is not absolute. Rule 509 also lists several situations where a spouse cannot assert the privilege to protect against the disclosure of confidential marital communications in court.

Under Rule 509 of the New Jersey Evidence Code, the confidential marital communications privilege does not apply:

• “if both spouses or partners consent to the disclosure;
• if the communication is relevant to an issue in an action between the spouses or partners;
• in a criminal action or proceeding in which either spouse or partner consents to the disclosure;
• in a criminal action or proceeding coming within section 17 of P.L.1960, c.52 (C.2A:84A-17); or
• in a criminal action or proceeding if the communication relates to an ongoing or future crime or fraud in which the spouses or partners were or are joint participants at the time of the communication.”

As you can see, the marital relationship cannot be used to avoid the legal consequences of the spouses’ criminal conduct. Moreover, the privilege cannot be used to interfere with regular proceedings where the spouses are adverse parties in a legal action.

For example, legal proceedings for divorce, child custody, and family support determinations between the spouses are not subject to the marital privilege. Otherwise, the court cannot find an evidentiary basis upon which it can decide cases between spouses.

Significantly, the privilege is only applicable to communications made between spouses. As a result, communications that occur between a parent and their child are not protected under Rule 509.

Ask an Attorney at DeTommaso Law Group, LLC

To fully understand your rights and responsibilities as a married spouse, you should consult an experienced New Jersey divorce attorney from DeTommaso Law Group, LLC. Our legal team has years of experience dealing with various matters related to New Jersey family law.