Admissibility of Evidence - Privilege - Testimony of One Spouse for the Other - Action founded Upon Adultery
While a party to a divorce action founded upon adultery is incompetent to testify against the other except to prove the marriage, to disprove the allegation of adultery, and disprove any proof offered in support of a defense, he or she is under no disability to testify for the other.[1]
The defendant may call the plaintiff as a witness in his or her behalf to testify to facts tending to prove his or her insanity at the time of the commission of the alleged adultery,[2] or to matters relating to his or her conduct claimed to bear upon the defendant's allegations of conspiracy and connivance on the part of the plaintiff. The plaintiff is then allowed to explain such conduct.[3]
[1] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32; Rosenwasser v Rosenwasser (1920) 110 Misc 38, 179 NYS 617, revd on other grounds 191 App Div 715, 182 NYS 27; Pettee v Pettee (1894) 77 Hun 595, 28 NYS 1067, affd 148 NY 735, 42 NE 725; Bailey v Bailey (1886, NY) 41 Hun 424.
[2] Bailey v Bailey, supra.
[3] Pettee v Pettee (1894) 77 Hun 595, 28 NYS 1067, affd 148 NY 735, 42 NE 725.
While a party to a divorce action founded upon adultery is incompetent to testify against the other except to prove the marriage, to disprove the allegation of adultery, and disprove any proof offered in support of a defense, he or she is under no disability to testify for the other.[1]
The defendant may call the plaintiff as a witness in his or her behalf to testify to facts tending to prove his or her insanity at the time of the commission of the alleged adultery,[2] or to matters relating to his or her conduct claimed to bear upon the defendant's allegations of conspiracy and connivance on the part of the plaintiff. The plaintiff is then allowed to explain such conduct.[3]
[1] Grobin v Grobin (1945) 184 Misc 996, 55 NYS2d 32; Rosenwasser v Rosenwasser (1920) 110 Misc 38, 179 NYS 617, revd on other grounds 191 App Div 715, 182 NYS 27; Pettee v Pettee (1894) 77 Hun 595, 28 NYS 1067, affd 148 NY 735, 42 NE 725; Bailey v Bailey (1886, NY) 41 Hun 424.
[2] Bailey v Bailey, supra.
[3] Pettee v Pettee (1894) 77 Hun 595, 28 NYS 1067, affd 148 NY 735, 42 NE 725.
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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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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