Do you have the right to remain silent in a divorce case?
This blog post contains general information about invoking your Fifth Amendment rights during a divorce case. It is not legal advice and is not a substitute for talking to a lawyer. If you have specific questions about the law and how it applies to you, talk to a lawyer.
American courts have long-regarded the Fifth Amendment of the United States Constitution as vital to a free and civilized society. The Fifth Amendment provides, in part, that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Indiana’s Constitution also guarantees this protection: “[n]o person, in any criminal prosecution, shall be compelled to testify against himself.” Ind. Cont. art. 1 § 14. This protection is sometimes called “the right to remain silent.”
You have the right to remain silent in a divorce case.
Thanks to television, movies, and/or personal experience, you likely understand that that you have the right to remain silent in a criminal case. You also, however, have the right to remain silent in a civil case, including a divorce case. This means that you have the right not to answer questions that you are asked in a divorce case where the answers might incriminate you in a future criminal proceeding. This right applies at any stage of your divorce proceeding (during written discovery, depositions, and at a provisional or final hearing, for example), and protects against questions that call for you to admit a crime or objectively create “some tendency” to subject you to criminal liability.
How to invoke your right to remain silent in a divorce case.
The words necessary to invoke your right to remain silent generally go something like this: “I assert my rights under the Fifth Amendment of the United States Constitution and respectfully decline to answer the question.” How and when to invoke the right to remain silent can be complicated. If you fail to invoke the privilege, a court may find that you waived your chance to do so and force you to answer potentially incriminating questions. If you have questions about how to invoke the right to remain silent, it is very important to talk to an attorney.
In a civil case, if you invoke your right to remain silent, your spouse can ask the court for an “adverse inference” against you.
When you invoke your right to remain silent in a divorce case (or any other civil case), it deprives your spouse of potential evidence. Your spouse, however, has a significant remedy at his or her disposal: the adverse inference. In other words, although your refusal to testify in a civil case cannot be used against you in a later criminal proceeding, it can be used against you in the civil proceeding. Your spouse, therefore, can ask the judge to draw an adverse inference against your refusal to testify and to find that whatever you would have said would have hurt your case. This may put you between a rock and a hard place. You may have to choose between offering potentially incriminating testimony and risking criminal proceedings or hurting your divorce case and invoking your right to remain silent.
You can ask the divorce court to “stay”- or pause- your divorce case until your criminal case has ended.
You may be able to avoid an adverse inference by asking the court to “stay”- or pause- your divorce case until any criminal proceedings have ended. You do not have an absolute right to a stay. Courts will balance several factors in deciding whether to stay civil proceedings and will do so when the interests of justice require it. If you have questions about these factors or how to request a stay, you should talk to a lawyer.
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