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The Husband-and-Wife Privilege Protects All Marital Communications:

Most people are at least somewhat familiar with the fact that what they say to their attorney is confidential. You've probably seen movies where a criminal defense lawyer comes into an accused man's jail cell and the perp tells his lawyer he committed the crime. Further, most of us feel pretty comfortable with telling our doctors even embarrassing details about our health because we're relatively sure he or she isn't going to tell people at dinner parties or church what we told them.

In Texas, we have a rather unique rule about communications between spouses: when husbands and wives communicate privately, all they say can be held completely privileged. This means that, not only can those conversation be kept out of court, but that spouses can refuse to answer any questions about what they've talked about.


Questions answered on this page

  • Are husband and wife conversations protected?
  • Does marital privileges extend to common law spouses?
  • How can attorney help me with my personal injury case?


Spousal privilege is intended to protect marriage.

Rules of evidence are not created in a social vacuum. That is to say, the rules' crafters know that life exists outside of the courtroom and its judicial proceedings. We want all relevant evidence to come into trial, but there are exceptions. The spousal communication exception exists because, as a society, we believe that marriage is sacred and that a necessary component of the relationship is open and honest communication. We do not want court proceedings, as important as they might be, to shatter the bonds of marriage because what we thought were private, intimate conversations with our spouse are now out in the open.

Another concern is for the litigant's wellbeing. Going through a lawsuit can be taxing and confusing, and a personal injury victim will need someone other than his or her lawyer to talk about the case with. If the spousal communication privilege didn't exist, then every lawyer would be forced to advise their clients to never speak about the case with their spouse until the case is over. Does that seem healthy, much less socially desirable? No.

Further, there's a truth-seeking element at play. Consider this: when we confide in those closest to us, we don't usually frame our thoughts in a considered way. We just start talking. We might express guilty feelings regarding things we were not remotely responsible for. A personal injury victim might be enduring such emotional trauma, physical pain, and the effects of prescribed medication that in private moments with his wife, he could misremember the accident completely. We don't want the jury to hear these private discussions.

The marital privilege applies to "common law" spouses, but not other relationships.

Some couples in Texas may qualify for this privilege even if they aren't technically married. Texas doesn't have "common law" marriage, but we do have informal marriage, which requires:

  1. A man and woman,
  2. Who live together in Texas, and
  3. Who hold themselves out as husband and wife.

This isn't an easy thing to prove, but we've done it before. Perhaps controversially, no other couples qualify for this privilege. That means boyfriends and girlfriends, even those who've lived together for decades, cannot protect their communications. Further, with the advent of same-sex marriage in other states, we're not sure how Texas courts will view communications made between same-sex couples married in other states.

Surprisingly, most personal injury lawyers don't even know this privilege exists.

You might well assume that a trained lawyer knows the rules of evidence. You'd still be wrong. In our many years' experience, we've watched other lawyers blow this entirely. Not only have we seen the most intimate of conversations between spouses make it into the court's record, which is bad enough, but we've seen those communications ruin cases.

For example, right after an accident you might be so confused about what happened that you tell your husband that the accident was your fault. After reviewing the evidence with your attorney, you might come to find out that it was in fact another person's fault completely. But if your husband is now allowed to testify, the fact that you told him you thought it was your fault in the beginning could prejudice your claim.

Only hire a lawyer with the right qualifications

The attorneys at Grossman Law Offices, based in Dallas, TX, constantly revisit the rules of evidence to make sure they're providing their clients with all the benefits the law allows. If you've been hurt, don't hesitate to call us now at (855) 326-0000 for a free consultation. We're here for you to protect your rights.


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