Marriage Has Its Privileges...Even During an Injury Claim

If you are involved in a personal injury lawsuit while already married or heading towards marriage, an issue that may arise is whether—and to what extent—your communications with your spouse can be revealed and used against you. Fortunately, Arizona has a spousal privilege that protects your significant other from being examined as a witness.

In Arizona, there are two marital privileges:

1.  Anti-Marital Fact Privilege

This privilege enables a spouse who is a party in civil or criminal proceedings to prevent the other spouse from testifying. The anti-marital fact privilege only exists during the marriage; however, it is a complete bar to a spouse testifying if the other objects.

Arizona Revised Statute § 12-2231 states:

In a civil action a husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, except as provided in § 12-2232.

Arizona has interpreted the privilege to forbid any testimony, not just damaging testimony, as to events which occurred during marriage unless the non-testifying spouse consents․

2.  Marital Communications Privilege

This privilege protects confidential communications made between spouses. Unlike the anti-marital fact privilege, the marital communications privilege survives the termination of the marriage. The marital communications privilege applies both during the marriage and afterward, barring disclosure of confidential communications only.

Arizona Revised Statutes § 12-2232 states:

A husband or wife, during the marriage or afterward, without the consent of the other, shall not be examined as to any communications made by one to the other during the marriage, except:

1. In an action for divorce or a civil action by one against the other.

2. In a criminal action or proceeding as provided in the criminal code.

3. In an action for damages against another person for adultery committed by either husband or wife.

In the Blazek case, the court held that defendant may depose plaintiff’s ex-husband concerning all relevant matters except confidential communications made during the marriage. This meant that all non-communicative actions which the husband observed during the marriage and any non-confidential communications between plaintiff and her ex-husband were subject to discovery in the defendant’s deposition. Blazek v. Superior Court, 177 Ariz. 535, 538, 869 P.2d 509, 512 (App.1994). However, the court hinted that concerns that plaintiff’s ex-husband may "blurt out" privileged communications should be resolved through objections at the deposition and sanctions for any deliberate misconduct.

Talk to a Lawyer

If you are involved in a personal injury claim or court case, you need legal representation.  Hiring a lawyer to ensure that your spousal privilege is protected is in your best interests. If you or a loved one has been injured and someone else is at fault, immediately give Quintana Law a call for a FREE consultation at (602) 418-0733. We can help.