Some conversations cannot be used against you in a Georgia divorce, no matter how helpful they would be to the other side.
Where the List Comes From
Georgia’s privileges are set out in OCGA 24-5-501, part of the Evidence Code that took effect on January 1, 2013. In Brown v. Howard, 334 Ga. App. 182 (2015), the Court of Appeals set out the portion of that statute covering mental health providers. The relationships the statute protects include husband and wife, attorney and client, psychiatrist and patient, licensed psychologist and patient, and licensed clinical social workers, marriage and family therapists, and professional counselors and their patients. A separate section, OCGA 24-5-502, covers what you tell a minister.
These Rules Apply to Your Divorce Trial
In Parker v. State, 296 Ga. 586 (2015), the Georgia Supreme Court held that Georgia’s Evidence Code enumerates twelve situations, “and only twelve,” in which the rules of evidence have limited application, and that outside those situations “the rules of evidence fully apply.” A divorce or custody trial in superior court is not one of the twelve.
A Third Person Destroys the Privilege
The most common way people lose a privilege is by letting someone else hear. In Huerta-Ramirez v. State, 357 Ga. App. 123 (2020), the Court of Appeals explained that “the rule applicable to attorney-client communications applies equally to the marital/spousal privilege,” and that a conversation is not confidential when a third person is present or listening.
You Have to Claim It
A privilege is not self-executing. As the Georgia Supreme Court put it in Frost v. Frost, 299 Ga. 278 (2016), “the party asserting an evidentiary privilege has the burden of establishing it.” So raise it when the question is asked, not after the answer is in the record.
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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!