Is there such a thing as spousal privilege?

The issue of the inadmissibility of negotiations and “spousal privilege” are like apples and oranges.

There is a general premise that settlement discussions are not admissible for the purposes of proving potential liability. Therefore, you cannot use in court a statement by your spouse that he or she was willing to take X dollars when you were negotiating, to support your position on an issue. The purpose is to encourage people to engage in settlement discussions without worrying that such statements may be used against them in court.

The “spousal privilege,“ however, is a different subject and usually does not apply in family-law cases.

Generally, California family law allows one party not to testify to the detriment of the other spouse when the latter is involved in a lawsuit. The “privilege“ of not testifying against your spouse clearly has a major exception. In a proceeding brought by or on behalf of one spouse against the other, there is no marital privilege. Therefore, one spouse can testify against the other spouse in a dissolution proceeding.  Even communications between the spouses during the marriage are admissible.

Negotiations may be admissible in the dissolution proceedings when determining the issue of attorney’s fees. The court can look at the negotiation positions of the parties pursuant to Family Code Section 271.

Mark P. Gross is a divorce attorney and a founding partner in the Sherman Oaks-based firm of Brot & Gross. He appears in all of the family-law branch courts of Los Angeles County and Ventura County.