Forcing Testimony About Adultery in a Divorce Trial

Every divorce lawyer has a story about one (sometimes both?) spouses being forced to “take the 5th” in a divorce trial. They’re speaking of the standard technique of forcing the other spouse to claim his or her 5th Amendment privilege against self-incrimination rather than being forced to come clean with the court about an adulterous affair.

Adultery is a Class B misdemeanor in Alabama, Ala. Code § 13A-13-2, with a 1-year statute of limitations. Ala. Code § 15-3-2. So can one spouse force the other to testify about adultery if the question is limited to adultery that occurred more than a year ago? That’s the approach the wife tried in Ex Parte Edmonson, Case No. 2160432 (Ala. Civ. App. May 5, 2017).

On the first day of the divorce trial the wife’s lawyer asked the husband whether he had had sexual relations with a woman not his wife more than 365 days before the date of trial. The Husband’s lawyer objected, and the Husband asserted his Fifth Amendment privilege. The trial court stopped the trial and asked both sides to submit letter briefs concerning the husband’s right to assert the privilege. After reviewing both briefs, the trial court stayed the action indefinitely “pending resolution of any criminal charges against [the husband] and said charges against [the husband], if any, are adjudicated at the trial level.”

Now what? Neither the husband nor the wife wanted that. The Husband filed a petition for writ of mandamus instructing the trial court to lift its stay, and the wife endorsed it.

The appeals court rejected the argument of both sides that the trial court had no power to order a stay because neither party asked for it. “[A] trial court has the inherent power to control litigation in its courtroom and to manage its docket.”

The parties disagreed on whether the husband could be forced to testify about adultery that occurred more than 365 days before the trial. The husband argued that, because adultery is a continuing offense. The appeals court dismissed his argument, though. “[T]he husband’s right against self-incrimination is not implicated by questions regarding allegedly adulterous acts that occurred more than one year before the date of trial because the husband can no longer be criminally prosecuted for those acts.”

Having removed the husband’s rationale for asserting his Fifth Amendment privilege, the appeals court then rejected the trial court’s rationale for an indefinite stay, calling it “beyond the scope of the trial court’s discretion.” The appeals court granted the husband’s petition and ordered the trial court to vacate its stay.

So now the appeals court has made the only decision it could, to allow the orderly procession of divorce cases through the courts regardless of the claim of Fifth Amendment privilege regarding adultery. Now that the husband’s Fifth Amendment privilege has been thoroughly aired and discussed by everyone in the courthouse, you have to believe the wife got more divorce court leverage from his alleged affair than she ever would had he simply said “yes, we had an affair.”

And another thing: in another day, with another governor and another legislature, perhaps adultery will no longer be a crime in Alabama.


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