You can refuse to answer a discovery question in a Georgia divorce when a truthful answer might incriminate you.
What the Statute Says
OCGA 24-5-505(a) provides that “[n]o party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate” that person. The Fifth Amendment to the United States Constitution and the Georgia Constitution protect the same thing, and all of it applies in a divorce.
It Has to Be Claimed One Question at a Time
In U-Haul Co. of Arizona v. Rutland, 348 Ga. App. 738 (2019), the Court of Appeals held that “[t]here is no blanket Fifth Amendment right to refuse to answer questions in civil proceedings” and that “[t]he privilege must be specifically claimed on a particular question and the matter submitted to the court for its determination as to the validity of the claim.” The court vacated an order that had allowed a party to assert the privilege across the board, because the trial judge had never examined the requests one by one. It also noted that the privilege does not automatically cover producing a document, which may only give access to evidence that already exists.
Financial Questions Can Qualify
In Mallin v. Mallin, 227 Ga. 833 (1971), a former husband refused to answer 35 interrogatories about his property, income, bank accounts, cash transfers, and tax returns. The Georgia Supreme Court affirmed the refusal to make him answer, holding it could not say that answers about his financial dealings might not tend to incriminate him under state or federal law.
Silence Has a Cost
U-Haul also confirmed the trade-off. Where a party invokes the privilege in a civil case, “the factfinder may infer that the documents would have been harmful.”
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!