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Somebody asks: Is it true that you can’t be forced to testify against your spouse? What if you have a common law marriage?

As a general rule, you cannot be forced to testify against your spouse in a criminal proceeding. This is known as spousal privilege. You may, however, choose to testify against your spouse.

Spousal privilege has limits.  It does not exist in matters involving nonsupport, desertion, neglect of parental duty, or child abuse.  Spousal privilege does not apply to civil matters.

Spousal privilege is sometimes confused with spousal disqualification, which is recognized in both criminal and civil proceedings. Spousal disqualification prevents one spouse from testifying about private conversations with the other spouse that occurred during their marriage.  Spousal disqualification also has limits.  It does not apply to matters involving:

a) a contract dispute between spouses;
b) the establishment of paternity or the modification or enforcement of a support order;
c) nonsupport, desertion, or neglect of parental duty;
d) allegations of child abuse;
e) a spouse who is charged with a crime against the other spouse;
f)  restraining order violations;
g) a deceased spouse’s declaration;
h) criminal proceedings in which the private conversation reveals a bias or motive on the
part of the spouse who is testifying against the other spouse

As to common law marriage.

Many couples believe that they are “common law married” simply because they have cohabited for a period of time.  However, you cannot enter into a common law marriage in Massachusetts. Because Massachusetts does not recognize such arrangements as marriages, marital privilege does not apply.  One member of the couple can be compelled to testify against the other.

Massachusetts does recognize common law marriages that were legally created and recognized in a state that permits such marriages. Those states are Alabama (prior to January 1, 2017), Colorado, Iowa, Kansas, Montana, New Hampshire (only after the death of one spouse), Rhode Island, South Carolina, Texas, and Utah.

Therefore, if a couple has a legally valid, recognized, common law marriage in Alabama, and then moves to Massachusetts, Massachusetts will recognize that couple as legally married. In such cases marital privilege and marital disqualification would apply.


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