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TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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This is a family law question and I am in the State of Arizona,

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This is a family law question and I am in the State of Arizona, although I reside in Mexico. My husband and I are legally separated and have been since December 9, 2009. I am being sued and am getting ready for discovery by the Plaintiff. Do my husband and I have privilege after December 9 as to e-mails we sent each other since we are still technically legally separted?
The Spousal Privilege applies to communications such as this in certain circumstances, depending on what you are being sued for. What are you being sued for?

Customer: replied 4 years ago.

My separated husband filed bankruptcy (Chapter 7) and it has not been discharged yet. I am being sued for the same counts in Arizona civil court and the Plaintiff is contesting the legal separation even though the bankruptcy judge examined the legal separation and found no fault with it. She has so given in an opinion. I am worried that the discovery will make me produce all e-mails between us which are volumunious because we have 3 adult children together that cause continuing communications and we are working together on our separate lawsuits. I am representing myself pro se so this is the starting point of this. I'll be looking for some case law later to support my case that we have privileged rights if that is available to me.

Thank you for your response. The short answer is that you should object and withhold all documents subject to the "spousal privilege" on any request that seeks communications between you and your spouse. The statute which supports the spousal privilege is:

2005 Arizona Revised Statutes - Revised Statutes §13-4062 Anti-marital fact privilege; other privileged communications
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A person shall not be examined as a witness in the following cases:
1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, as to events occurring during the marriage, nor can either, during the marriage or afterwards, without consent of the other, be examined as to any communication made by one to the other during the marriage. These exceptions do not apply in a criminal action or proceeding for a crime committed by the husband against the wife, or by the wife against the husband, nor in a criminal action or proceeding against the husband for abandonment, failure to support or provide for or failure or neglect to furnish the necessities of life to the wife or the minor children. Either spouse, at his or her request, but not otherwise, may be examined as a witness for or against the other in a prosecution for an offense listed in section 13-604, subsection W, paragraph 4, for bigamy or adultery, committed by either spouse, or for sexual assault committed by the husband.

Please let me know if you have further questions. Please remember to provide me a positive rating so that I may be paid for my work.
Customer: replied 4 years ago.

This was very helpful but he might choose to be my witness regarding the validity of the legal separation and I want to make sure that written communications is not opened up by his desire to be a witness on my behalf. Also, we filed separate tax returns except one year, by mutual consent (2011) because he had loss carry-forwards I needed. I need a cite for this also because I was told but did not get the cite that in Arizona if it were mutually agreed upon this was all right also. (The IRS statute depends upon the State statute; I got all that I need in regard to the IRS I just need the AZ site). I apologize for the three-tierd question but the last answer in particular was very helpful. I know this is not technically legal advice and you are not liable but just give me the information to your best knowledge. I am seeing a Tucson lawyer Monday about this and I'd like to have this info prior to that time if possible.


By placing your spouse on the stand, you waive the spousal privilege. He will be forced to testify in cross examination about everything you are trying to keep privileged. So that would be a huge mistake to put him on the stand as a witness if you are trying to keep the communications privileged. Now, you don't have to turn over the communications immediately. However, if you are forced to produce a privilege log that lists the documents for which you are claiming privileged (which you will likely have to do), then the opposing attorney will know about them and will ask about them when he goes on the stand to testify.

In regard to your IRS question, I'm not quite sure I understand what you are looking for. Technically, we are only supposed to answer follow up questions on the same subject as the first question. This would be a different subject. If you want, resubmit your IRS question with a better explanation after rating me for my prior answer. That way we can make sure someone who specializes in tax questions answers your question. Otherwise, I will have to refer you back onto the list without getting compensated for the time spent with you here.

In the meantime, if you have any more questions about the spousal question, please let me know.

Thanks for understanding,


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