In the unusual context of a U.S. Bankruptcy Court case, Judge Melvin S. Hoffman examined an evidentiary statute that is daily fodder in family law litigation, M.L.G., ch. 233, §20, known as the “spousal disqualification”. In short, §20 prohibits married or divorced person from testifying to private conversations between them that occurred during marriage.
It is not a waivable privilege, like the right to withhold testimony in a criminal proceeding against one’s spouse. It is a rule that neither party may relax, certainly not unilaterally; and, arguably, a judge should not rely on disqualified testimony, even if neither party is vigilant enough to object to its admission.
There are exceptions to the rule: domestic and child abuse cases, and at issue in M.T.J.C. LLC, et als. v. Steven Simon, cases where the spouses have entered into a contract with each other. Appellate cases have previously addressed construction questions such as: “can a ‘conversation’ be in writing?” (no); and “what is private”? (where a reasonable expectation of privacy exists, which may be negated by the presence of other persons who have the capacity to overhear and understand); and most recently, does the Alimony Reform Act (eff. 3.1.12) definition of marriage length (M.G.L., ch. 208, §48) terminate the period of disqualification? (no, private conversations remain disqualified until absolute divorce, under Balistreri v. Balistreri, Appeals Court 2018).
But, this bankruptcy judge faced a question that neither §20 nor appellate case law have yet addressed, namely, does the contract exemption to spousal disqualification apply in a lawsuit in which a third party is litigating against one of the spouses?
Because of the paucity of authority, Judge Hoffman tasked himself with “… predict[ing] how the Massachusetts Supreme Judicial Court would rule on this issue”. In doing so, he carefully reviewed the statute and interpretive case law, and concluded, soundly, that the contract exemption only applies when the spouses are themselves lawsuit opponents.
In other words, the court could not order Ms. Simon to testify about her private conversations with Mr. Simon about a contract between them, at the demand of someone else suing her husband.
Judge Hoffman’s scholarship is an interesting read, especially for those who encounter the disqualification on a daily basis, and rarely question its premises. He recites history and policy that underlay the statute: that spouses were considered “as one” in common law, that their interests were uniformly aligned, that the “bias of affection” would undermine reliable testimony, that marital peace would be disturbed, and that cross examination of the declarant might cause prejudice to the other spouse.
He concludes that even if many of these reservations “seem quaintly outdated”, they nevertheless ground a statute, which the trial courts are not free to alter.
As a family law arbitrator, special master and litigating-lawyer-in-recovery, I can’t miss the unavoidable irony in the “bias of affection” justification for spousal disqualification. The divorce court’s problem is in fact, the polar opposite: think, “the bias of disaffection”.
Who among us has not encountered an estranged couple about whom we have thought “they can’t even agree that the sky is blue”? Hell, many of us have been there in ourselves personally…
The fact of the matter is that, quaint or not, spousal disqualification is a good rule. What harmonious couples talk about privately is no one else’s business; and how conflicting spouses remember it, or choose to recount it, clouded by conflation, confusion or convenience, gives rise to inherently unreliable testimony.
Factfinders struggle enough with the quantum of evidence in a field where parties and counsel fear leaving even the smallest pebble unturned. Opening divorce trials to endless “he/she/they said” testimony would be a race to the evidentiary bottom, producing even more heat and precious little light.
As a young litigator I felt the opposite. Age has its privileges, I guess.
