San Francisco Family Law Firm Says Possible John Edwards Marriage Highlights the Power of Spousal Testimonial Privilege

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Speculation is rampant that John Edwards is planning to marry former mistress Rielle Hunter to take advantage of spousal testimonial privilege laws. San Francisco family law firm Heath-Newton, LLP explains how the privilege works, and when it cannot be used.

Divorce Attorney, Family Law, Child Custody Attorney San Francisco

Heath-Newton, LLP is a San Francisco family law practice that focuses on families.

The spousal testimonial privilege can be a very powerful bar to testimony

The National Enquirer, which broke the John Edwards scandal in 2007, is now reporting that that the embattled former senator and presidential contender may be planning to marry his one-time mistress, Rielle Hunter. Edwards is accused of conspiring to violate campaign finance laws by using approximately $1 million from campaign donors to cover up his affair and the child he fathered with Hunter.

The gossip mag speculates that his change of heart may not have been motivated solely by the recent heart troubles that have delayed his trial. If Edwards does marry Hunter, she would not be able to testify against him at the trial, and some theorists believe this is the only reason he wants to marry Ms. Hunter. Jane Aceituno, an attorney at the San Francisco family law firm Heath-Newton, points out that this is due to the testimonial privilege between spouses. She explains how the spousal testimonial privilege works, and when it does not apply.

“The spousal testimonial privilege can be a very powerful bar to testimony,” notes Aceituno. She explains that the privilege has two parts: there is a privilege not to testify against one's spouse and a privilege not to be called as a witness against one's spouse. A married person has a privilege not to testify against his or her spouse in any proceeding. Additionally, a married person whose spouse is a party to the case has a privilege not to be called as a witness by an adverse party without the prior express consent of the spouse having the privilege.

“If this matter were a divorce, however, the privilege against spouses testifying against each other would not apply,” says Aceituno. Spouses are often at odds regarding the way child custody and visitation should be decided or how assets should be divided. Anything a spouse says can be used against them in court when disputing these issues.

“One spouse admitting to hiding assets in a Swiss bank account, for example, cannot claim a privilege against having his wife testify against him when she wants to be compensated for losing access to the money,” explains the San Francisco divorce attorney. “People are wise not to say anything around their spouses that could later open the door to an unfavorable court action.”

Aceituno cautions that there are multiple ways that a spouse can communicate with their other half: in person, on the phone, email, text messages, etc. During the family law litigation process, all of these forms of communication and more can be discovered and used as evidence at trial. Either spouse can get on the stand and state word for word what her spouse told her through any form of communication. The other spouse is powerless to keep her quiet.

“It is incredibly important to have excellent legal counsel to manage not only the formal process of a divorce, but also the communication between the parties. In the Bay Area, a person is wise to engage the best San Francisco divorce lawyer available to help navigate these dangerous waters,” advises Aceituno.

For more information about the spousal testimonial privilege and its limits, or any other family law matter, please contact San Francisco family law attorneys Heath-Newton, LLP by calling (415) 992-5038, visit their website, or stop by their office located at 240 Stockton Street, Suite 300 in San Francisco, California.

About Heath-Newton, LLP
Heath-Newton, LLP is a San Francisco family law practice focused on families. These San Francisco divorce attorneys pride themselves on working with clients from all backgrounds and lifestyles. Heath-Newton, LLP specializes in premarital agreements (prenups), same-sex marriages and domestic partnerships, divorce, child support, spousal support, adoption, and child custody in San Francisco and the Bay Area.


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Erik W. Newton
Heath-Newton LLP
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