Admissibility of Evidence - Privilege - Testimony of One Spouse against the Other - Confidential Communications - Waiver
The incompetency of one spouse to testify against the other spouse in a divorce action is not a privilege which may be waived.[1] Incompetent testimony does not become admissible by a failure to object to it,[2] inasmuch as a public interest is involved in a divorce action which might result in the dissolution of a marriage.[3] Thus, where the plaintiff is permitted without objection to give evidence concerning the defendant's adultery, the judgment of divorce will be reversed.[4] However, where the plaintiff's testimony, which is admitted without objection, is not on any issue relating to the dissolution of the marriage, the judgment will not be reversed because of its admission, because no public interest is involved.[5]
[1] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32; Admire v Admire (1943) 180 Misc 68, 42 NYS2d 755.
[2] Admire v Admire, supra; Bolognino v Bolognino (1930) 136 Misc 656, 241 NYS 445, affd 231 App Div 817, 246 NYS 883.
[3] Bolognino v Bolognino, supra.
[4] Bevelaqua v Bevelaqua (1922) 202 App Div 841, 194 NYS 918; Taylor v Taylor (1908) 123 App Div 220, 108 NYS 428; Fanning v Fanning (1892) 2 Misc 90, 20 NYS 849.
[5] Valentine v Valentine (1903) 87 App Div 156, 84 NYS 37.
The incompetency of one spouse to testify against the other spouse in a divorce action is not a privilege which may be waived.[1] Incompetent testimony does not become admissible by a failure to object to it,[2] inasmuch as a public interest is involved in a divorce action which might result in the dissolution of a marriage.[3] Thus, where the plaintiff is permitted without objection to give evidence concerning the defendant's adultery, the judgment of divorce will be reversed.[4] However, where the plaintiff's testimony, which is admitted without objection, is not on any issue relating to the dissolution of the marriage, the judgment will not be reversed because of its admission, because no public interest is involved.[5]
[1] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32; Admire v Admire (1943) 180 Misc 68, 42 NYS2d 755.
[2] Admire v Admire, supra; Bolognino v Bolognino (1930) 136 Misc 656, 241 NYS 445, affd 231 App Div 817, 246 NYS 883.
[3] Bolognino v Bolognino, supra.
[4] Bevelaqua v Bevelaqua (1922) 202 App Div 841, 194 NYS 918; Taylor v Taylor (1908) 123 App Div 220, 108 NYS 428; Fanning v Fanning (1892) 2 Misc 90, 20 NYS 849.
[5] Valentine v Valentine (1903) 87 App Div 156, 84 NYS 37.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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Joel R. Brandes Consulting Services, Inc.
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Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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