Georgia’s spousal privilege protects what you and your spouse said to each other in confidence. It is not a rule that keeps your spouse off the witness stand in a divorce.
The Rule About Refusing to Testify Is a Criminal Rule
People often have in mind OCGA 24-5-503. In Morgan v. State, 354 Ga. App. 754 (2020), the Court of Appeals set out its text: a husband and wife “shall be competent but shall not be compellable to give evidence in any criminal proceeding for or against each other.” By its own words that protection reaches criminal proceedings. A divorce is a civil case.
What Is Actually Protected
The privilege that matters in a divorce is the one for confidential communications, at OCGA 24-5-501(a)(1). As the Court of Appeals put it in Huerta-Ramirez v. State, 357 Ga. App. 123 (2020), “[i]n Georgia, confidential communications between a husband and wife are privileged.” That covers what passed between the two of you privately, not everything either of you happens to know.
Anyone Else Listening Ends It
In Huerta-Ramirez, a husband borrowed a detective’s cell phone and spoke to his wife for thirty minutes from an interview room. The court held the call was not a confidential communication, because he had been told he was being recorded and had acknowledged it. The court explained that the same rule governs marital and attorney-client communications alike, and that neither is confidential when a third person is present or listening.
So a conversation held in front of a friend, a relative, or one of your children is not protected. Neither is one you carry on where you know it is being recorded.
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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!