Family Law

Evidentiary Privileges in Family Law Cases

California law recognizes specific privileges that protect against the disclosure and testimony regarding specific communications and information. However, the operation of these privileges can change in family law cases such as divorce. This article discusses certain evidentiary privileges and how they are treated in family law cases.

California Evidence Code § 970 – Privilege Not to Testify Against Spouse

Under California Evidence Code § 970, “a married person has a privilege not to testify against his spouse in any proceeding.” Common law courts have recognized these privileges for many years before state evidence codes codified them. The policy behind this privilege is that the marital relationship would be endangered if spouses could be compelled to testify against each other.

The Privilege Not to Testify Against Spouse in Family Law Cases

Understandably, a divorce case would be pointless if the privilege not to testify against a spouse were applicable. The evidence code explicitly recognizes an exception to § 970 for divorce cases. Under California Evidence Code § 972, this privilege does not apply in “a proceeding brought against the spouse by a former spouse so long as the property and debts of the marriage have not been adjudicated, or in order to establish, modify, or enforce a child, family or spousal support obligation arising from the marriage to the former spouse…”

The exception provided by § 972 also applies to the following situations:

  • Child support cases brought by a parent against the spouse regarding a child from a nonmarital relationship
  • Child support cases brought by the guardian of a child of a spouse

California Evidence Code § 980 – Privilege for Confidential Marital Communications

Under Evidence Code § 980, “a spouse..., whether or not a party, has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses.”

This privilege underscores the vital role of communication in marriages. The policy behind this privilege is that spouses would be deterred from discussing important information if a court could later compel one of them to testify about it. By granting this privilege, spouses are encouraged to communicate with each other openly, instead of having secrets.

The Marital Communications Privilege in Family Law Cases

Under California Evidence Code § 984, the marital communications privilege does not apply to “(a) a proceeding brought by or on behalf of one spouse against the other spouse…[and] (b) a proceeding between a surviving spouse and a person who claims through the deceased spouse…” As a result, this privilege will not prevent the disclosure of confidential marital communications in cases involving divorce and child support or spousal support.

Furthermore, California Evidence Code § 986 provides that the marital communications privilege is not applicable “in a proceeding under the Juvenile Court Law…” For example, the marital communications privilege us unavailable in cases regarding the foster care of children and juvenile crimes committed by the spouses’ dependent children.

California Evidence Code § 954 – Lawyer-Client Privilege

Evidence Code § 954 recognizes a person’s “privilege to disclose, and to prevent another from disclosing, confidential communication between client and lawyer…” Like the privileges mentioned above, this privilege is based on the notion that open communication is essential to the attorney-client relationship. Without this privilege, clients would not be forthcoming to their attorneys about pertinent information that would be necessary to provide them with effective legal representation.

Attorney-Client Privilege in Family Law Cases

Generally, family law cases do not impact the operation of the attorney-client privilege between the parties and their respective lawyers. However, California Evidence Code § 962 provides that “where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them…, may claim [attorney-client privilege]…as to a communication made in the course of that relationship when such communication is offered in a civil proceeding between one of such clients…and another of such clients.” Therefore, the attorney-client privilege does not protect the disclosure of communications made between married spouses and their attorney if those communications are brought up in a subsequent divorce between the spouses.

Consult a Skilled Attorney from Moshtael Family Law

If you are looking for legal advice regarding a matter concerning California family law, you should contact one of our experienced attorneys from Moshtael Family Law. Our legal team has over 175 years of collective legal experience. We are dedicated to helping families in Orange County find a fair resolution of their family law issues so that they can move forward peacefully.

For a free consultation about how Moshtael Family Law can assist you, call us at (714) 909-2561 or contact us online today.