Limitations on Spousal Privilege in California

Hossein Berenji, Aug 16, 2022

Spouses have the right to refuse to testify against one another in many court proceedings. This right is long held but not absolute.

If you’re facing certain legal matters, you may have questions about the spousal privilege and how it might apply to your situation. You can get personalized answers from a trusted family law attorney. In the meantime, read this blog post to learn about what limitations there are on spousal privilege in the State of California.

What Is Spousal Privilege?

California law specifically recognizes the spousal privilege. The legislature established this law to protect a marriage by giving a spouse the option to not testify against their spouse and promoting marital harmony.

The spouse whose testimony is sought is the only one who can exercise the spousal privilege. You cannot prevent your spouse from testifying against you using the concept of spousal privilege. Spousal privilege also terminates upon divorce so, even if your spouse wanted to avoid testifying against you, if you’re no longer married, they don’t have that option.

Be aware of another legal term: marital communications privilege. These two legal concepts are related but not the same. Unlike the spousal privilege which terminates upon divorce, the marital communications privilege bars evidence of confidential marital communications from being admitted in court and survives a divorce.

Exceptions to Spousal Privilege

As with most laws, there are exceptions. The spousal privilege in California does not apply to all cases. Under California law, the spousal privilege cannot be used to prevent your spouse from testifying against you. Only they can assert this right.

Further, the spousal privilege does not apply in the following civil matters:

  • Any legal action where both spouses are named parties (like a divorce)
  • Legal proceedings where one spouse is attempting to control the other spouse’s property due to an incapacity
  • Legal proceedings to determine one spouse’s competence
  • Child support
  • Any legal action involving former spouses

But it’s not just civil matters where this spousal privilege carries exceptions. It may also not apply in the following types of criminal cases:

  • Any crime against a spouse
  • Any crime against a spouse’s property or relatives
  • Bigamy
  • Failure to provide for a child
  • Failure to support a spouse

For criminal matters, the issue in the case must have occurred either before or during the marriage. Here are some examples of how spousal privilege might apply in a criminal case:

  • One spouse is charged with robbery while the couple is married. The other spouse is thought to have some knowledge about the robbery and who else was involved. If the prosecutor calls the spouse to testify against the spouse charged with robbery and the couple is still married, the spouse who’s been asked to testify can assert the spousal privilege and refuse to testify.
  • A spouse is charged with robbery while the couple is married. The other spouse has been asked to testify because the prosecutor thinks they may know something about the robbery. This spouse decides to testify about the conversations they had with their spouse relating to the robbery.

The second example will not promote marital harmony, but the spouse might have valid reasons for deciding to testify notwithstanding the spousal privilege. This underscores a vital point about California’s spousal privilege law: only the spouse asked to testify has the right to assert the privilege.

Contact a Los Angeles Family Law Attorney Today

If you’re facing a family law issue or a matter where your spouse may be able to avoid testifying against you, discuss your options with a trusted and experienced family law attorney in Los Angeles today. Most lawyers in this area offer a free consultation to review your case.

Contact the family and divorce law firm of Berenji & Associates for help today.

If you’re going through a divorce, you need a strong team on your side fighting for your rights. Call Berenji & Associates today to know how we can assist you.

Beverly Hills Office
9595 Wilshire Blvd Ste 959
Beverly Hills CA 90212
(310) 271-6290

Los Angeles Office
550 S. Hill Street STE 1467
Los Angeles, CA 90013
(213) 985-3007