Pleading the Fifth in Child Custody or Divorce Cases

Divorces are civil proceedings, not criminal. That’s why the rules governing criminal matters, such as the right to a speedy trial or the right against unreasonable search and seizure, rarely intrude upon divorce cases.

One of the hallmark rights in a criminal case is that the accused can’t be forced to testify. This is the Fifth Amendment privilege against self-incrimination.

Since divorces and child custody cases are civil proceedings (as opposed to a criminal proceeding), does the Fifth Amendment even apply?

Yes and no. Here’s how it works:

First, in civil cases, the Fifth Amendment isn’t a blanket privilege that protects you from having to give any evidence at all. At most, it simply means that you don’t have to answer questions about your (possible) criminal conduct. The only reason that the Fifth Amendment might shield you from having to answer the question, “Did you buy meth?,” is because buying meth is a crime.

That’s why you would have to answer the question, “Did you buy vodka?” or “Didn’t you buy a handle of vodka every day last week?” or “Isn’t this a picture of empty vodka bottles hidden in the back of your closet?” You would have to answer these questions, since buying vodka (even in bulk) or not throwing away vodka bottles is not a crime. You would not have to answer the question, “Did you drink a fifth of vodka and then drive to the liquor store?” because it implicates the crime of DUI.

So the Fifth Amendment will not shield you from answering questions that don’t relate to (possible) crimes. Unless they somehow implicate criminal activity, questions about your finances, your earnings, your parenting history, etc. are all fair game.

Second, the Fifth Amendment applies only to crimes for which you can be prosecuted. For those of you old enough to remember, O.J. Simpson did not have to testify in the criminal case brought against him by the State of California because he had a Fifth Amendment privilege. Of course, once he was acquitted, the State of California could not prosecute him a second time for the same crimes.

Since Simpson could not again be prosecuted by the State of California for murder, the Fifth Amendment did not apply when the victims’ families sued him for civil damages after his acquittal. The Fifth Amendment applies only to crimes for which you can be prosecuted. Simpson could no longer be prosecuted for murder, so he had to testify in the civil cases, and he did testify.

How does this apply in your divorce case? Suppose that you are alleged in the divorce case to have engaged in illegal activity, such as domestic violence, drug possession, or DUI. If you have already been tried for that crime and acquitted in the criminal courts, you no longer have a Fifth Amendment privilege to refuse to testify about the alleged crime in the divorce case. Otherwise, even if you have not been charged, you still have that Fifth Amendment privilege.

There are a couple of caveats.

Since the Fifth Amendment applies only to crimes for which you can be prosecuted, if the statute of limitations on the alleged crime has expired, then the Fifth Amendment does not apply.

For example, suppose that the Statute of Limitations for DUI offenses is three years. [We have no idea what it actually is since we don’t practice criminal law. But for the sake of this illustration, let’s say it’s three years.] After this three-year period has expired with no prosecution being brought, you can’t be prosecuted for DUI — and therefore the Fifth Amendment privilege won’t be available in your divorce or child custody case. Again, if you can’t be prosecuted, the Fifth Amendment doesn’t apply.

Here’s the other caveat. Your spouse might ask the local prosecutor to issue a “no prosecution” letter, which is a formal guarantee that he will not prosecute you for a particular crime. This is sometimes done when the “crime” alleged is adultery, which in our experience, is rarely if ever prosecuted. [More on that below.] Armed with this letter, your spouse can ask the judge to find that the Fifth Amendment does not apply since you can’t be prosecuted for the crime.

Let’s illustrate how that works in real life. Your wife’s lawyer goes to visit the local district attorney and says, “Look, I’ve got a divorce case where the husband won’t testify about his adultery. He is telling the judge in the divorce case that the Fifth Amendment says that he doesn’t have to testify because you might prosecute him for adultery.”

The D.A. says, “I’m not going to prosecute anyone for adultery. As far as I know, nobody in Mississippi has ever been prosecuted for adultery. I’m not even sure that adultery is a crime.”

The lawyer says, “Exactly. Would you write me a non-prosecution letter that guarantees that you’re not going to prosecute the husband for adultery? That way, I can show your letter to the judge, and he will make the husband testify.”

Third, since we’ve already brought up the question of whether adultery is a crime, let’s pursue that a little further. Remember that we said that the Fifth Amendment is not a blanket prohibition against you having to give any evidence at all. At most, it only protects you from having to give evidence about (possible) criminal activity. If adultery is not “criminal activity,” then the Fifth Amendment is inapplicable.

So is adultery a crime in Mississippi? Some lawyers say that it is, based upon a criminal statute that says that the following is a crime: “If any man and woman shall unlawfully cohabit, whether in adultery or fornication.…” Other lawyers say that adultery is not a crime since what this statute prohibits is not “adultery,” but rather for the couple to “unlawfully cohabit.” We are unaware of any decision by the Mississippi Supreme Court that specifically answers this question. So the answer depends on which construction of the criminal statute is correct.

Finally, in criminal courts, the rule is that your “taking the Fifth” can’t be used against you. In other words, the judge/jury cannot presume your guilt based upon your refusal to testify.

There is some authority for the opposite proposition in civil courts, i.e., that your refusal to testify creates an “adverse inference” against you — in other words, that your refusal to testify can be used against you.

So much for what the law says. Thinking practically, never forget that judges are people, too, just like the rest of us. If we were to tell you (or anyone else) that a husband in a divorce case refused to talk about whether he’d committed adultery, and instead “plead the Fifth,” what would you think? What would most people think? Wouldn’t you be inclined to think that the husband was only pleading the Fifth because he had something to hide? If that’s the case, then you shouldn’t be surprised if judges think that way, too, regardless of the legal niceties that we’ve outlined in this article.

Read more about proving fault grounds for divorce .