Marital Privileges between Spouses

communications privilege, DuPage County divorce lawyer, marital privileges, sanctimonious relationship, spousal privilege, taxation status, testimonial privilegeMarried couples enjoy a number of unique privileges, which generally end in the event of a divorce. Aside from having favorable taxation status, married couples may enjoy unique privileges inside a court of law. The marital privilege, also sometimes called the spousal privilege, is a term used to describe two separate privileges. These include the testimonial and the communications privileges.

The Testimonial Privilege

Applicable only in federal criminal actions, the testimonial privilege permits each spouse to preclude any adverse testimony from the other spouse. As always, this privilege may be waived, but prevents the spouse of the accused from testifying against the defendant against their wishes.

The Communications Privilege

Applicable in both state and federal criminal cases, neither the husband or wife of the accused may testify as to any communication or admission made by either of them to the other except in cases where either is charged with an offense against the other. In order for the privilege to apply, the communications must fall under a set of circumstances. Whether or not this privilege applies to a particular case requires an analysis involving the type of court, the relationship of the parties, and the nature of the communication.


The United States Supreme Court, in Trammel v. United States, identified that the refusal to testify or the exclusion of relevant evidence serves a public good that transcends the principle of utilizing all rational means for ascertaining truth. The court, therein, identified the sanctimonious relationship between husband and wife as being superior to the demands imposed in seeking justice. This, in effect, promotes the open communication between husband and wife by eliminating the possibility of private communications being used against one another.

In contrast, allowing the use of confidential conversations, or other communications, between spouses would undermine the importance and value of marriage by eliminating a deep element of trust that married partners rely on to openly communicate between each other.


An important aspect to take into consideration with the marital privilege is divorce. Primarily, spouses should realize that communications made to one another after the termination of the marriage are not protected by the marital privilege. The communications between spouses are protected once the marriage begins, yet they end with divorce.

Communications made during the marriage, however, survive the termination of the marriage. The distinction to be made is that communications will be protected only if they are made in confidence during the marriage, but they will be protected beyond the life of the marriage and even survive death in certain circumstances.

Legal Implications

The nature of your marriage is most likely unique. When two individuals join together, the nature of their union can be more uncommon than each individual’s unique situation. As such, the importance of the marital privileges depends on your specific circumstances and why you would want to destroy or preserve these privileges. While it is always advisable to develop a relationship based on trust and respect, make sure you seek qualified professional help in determining whether or not these marital privileges will apply in your unique situation.

The experienced Illinois attorneys at Martoccio & Martoccio have years of experience in dealing with a multitude of complex marital relationships, both in maintenance and conclusion.  If you are concerned about how the marital privileges apply in your situation, or just have questions about your marriage or divorce, do not hesitate to contact the skilled Illinois attorneys at Martoccio & Martoccio today.

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