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Why Get Married – California Marital Privileges

I know that a lot of people these days are negative on marriage or view it as an antiquated institution. You likely know someone who lives with a long-term boyfriend or girlfriend, has kids with them, owns property with them, and — for all intents and purposes — they are a married couple, just without being married.

Despite all of the negatives that people associate with marriage, there are still positives. This blog post is going to go over one of them in California — the Marital Privilege. The Marital Privilege is not unique to California, by any means. New York has it as does the federal court system. This post is just about the California Marital Privilege.

Wedding Chapel – Santa Clara County, CA government center

If you’ve seen lawyers on television or in the movies, you’ve probably heard of the “Attorney-Client Privilege” at some point. In general, a privilege is something that protects you or excuses you from doing something the law would normally require. With an Attorney-Client privilege, it prevents anyone (e.g. a judge) from forcing your lawyer to disclose what you and your lawyer talked about. There are many different kinds of privilege generally. Each privilege has its own criteria that need to be satisfied first before the privilege can be invoked successfully. Each privilege also has its own limits and exceptions. This post is definitely not an exhaustive explanation. Always check the laws of your state and consult with an attorney about the specifics of your situation.

California law recognizes several different kinds of privileges, including the Attorney-Client Privilege and the Marital Privilege. In a nutshell, the Marital Privilege operates like┬áthe Attorney-Client Privilege in that it can limit an outsider’s ability to find out what you and your spouse talked about. There are three kinds of privilege within the Marital Privilege in California:

  1. A privilege to not to be forced to testify against your spouse in any proceeding (California Evidence Code section 970)
  2. A privilege to not to be called as a witness against your spouse (California Evidence Code section 971)
  3. A privilege to either not be forced to disclose or to prevent the disclosure of confidential communications between you and your spouse (California Evidence Code section 980)

The precise criteria, exceptions, scope, etc. of each of these privileges are too detailed to go in to in a single blog post. My goal in this post was to show that, despite the bad rap that marriage may have in some circles, you do get certain rights simply by being married that are not available to unmarried couples living together.

Domestic partners are an exception to this. Under California Family Code section 297.5, the three marital privileges I described apply to domestic partners as well, provided they went through the proper legal process under section 297(b) of the California Family Code to, among other things, file their Declaration of Domestic Partnership Form with the California Secretary of State.


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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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