Spousal privilege, known as as “marital privilege” in New Jersey, refers to confidential communications made between spouses, which cannot be disclosed without the consent of both parties.  The only exception is when “the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure...”, according to N.J.S.A. 2A:84A-22.  While marital privilege can, and often has, been exploited by people who wish to avoid prosecution, it's actual intent is to protect the sanctity of marriage by encouraging free and honest communication between spouses.  Most people are at least somewhat familiar with the concept of spousal privilege, but whether this privilege holds when spouses divorce is not as well known.

The statute does specify that “the requirement for consent shall not terminate with divorce or separation,” but it's important to note that these communications must have been made while the spouses were living in a state of marriage.  Hence, communications made between spouses who were living apart under a bed and board divorce are not considered privileged.  Another critical consideration is whether the communications were privileged to begin with, which has to do with the way in which the communications were obtained.

As previously mentioned, the court does have the discretion to override marital privilege for communications that are directly relevant to a criminal proceeding.  The Supreme Court of New Jersey has advised the trials courts to be extremely conservative in overriding this privilege, but that exceptions must be made when marital communications pose a legitimate threat to public safety.  In recent years, marital privilege has been overridden in cases like State v. Terry, in which marital communications pertaining to a drug trafficking network were intercepted via wiretap.  The trial court had allowed the communications into evidence, citing that because they were obtained through a wiretap, spousal consent was not needed since it was not a matter of asking one spouse to testify against the other.

This verdict was overturned by the Appellate Division, but upheld by the New Jersey Supreme Court, which stated, “The marital communication privilege is meant to encourage harmony, not protect the planning or commission of crimes.  The societal purpose behind the privilege is simply not served by safeguarding conversations between spouses about their joint criminal activities.”  The word “joint” is critical here, because while confessions made to an innocent spouse should be privileged, communications about a joint venture entered into, or being planned by both spouses, will no longer be considered privileged.  This verdict was viewed not just as a legal precedent, but as a fundamental change in the existing laws, resulting in a bill that is awaiting final enactment.  Once official, it would become an amendment to New Jersey's Evidentiary Rule 509, which deals specifically with marital privilege.  For more information on your marital privilege rights before and after divorce, please speak with the family law attorneys of Villani & DeLuca, P.C.