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In A Divorce, Can I Take The Fifth Amendment?

The Fifth Amendment of the United States Constitution states that no person can be compelled to give evidence against himself or herself. In a criminal case, this generally means that you cannot be forced to testify. You have probably seen the Fifth Amendment used in movies or television shows.

However, does the Fifth Amendment apply to a divorce case? The answer is “yes”, BUT, if you invoke (take) the Fifth Amendment in a divorce case, it can be used against you.  This is vastly different than taking the Fifth Amendment in a criminal case.

In a criminal case, if you take the Fifth Amendment, it cannot be held against you. You have the absolute right to take the Fifth Amendment, and the Court cannot imply that you have something to hide or use it against you.

However, in a divorce case or in any civil case (any case that is not a criminal case), the Judge and, if there is a jury, can assume that your answer would have a negative effect on you.

Here is an example of how the use of the Fifth Amendment differs in a divorce case versus a criminal case:

Question: “On New Year’s Eve, did you and your wife get into an argument about your credit card debt?”

Answer: “I refuse to answer that question based on the Fifth Amendment.”

Criminal Case Effect: None. The fact that you did not answer the question, cannot be held against you. There is no implication that you and your wife got into an argument or that anything at all happened.

Divorce Case Effect: Here, the Court can assume that you and your wife did get into an argument about your credit card debt.

Therefore, in most divorce cases, it is usually not a good idea to try to invoke the Fifth Amendment. However, there are some exceptions to that general rule.

If you are testifying in a divorce case and a question comes up that may implicate you in some criminal activity, you may want to invoke your Fifth Amendment right. Some examples where this may apply could be: (i) domestic violence issues; (ii) tax return issues; and (iii) fraudulent representations. Although, the Court could take an adverse inference, you do not want to admit to any possible criminal activity. Each situation and each matter is different. You would need to consult with your attorney to determine if you should take the Fifth Amendment.

David Badanes, Esq. provides expert advice and legal services in matrimonial (divorce) law. If you need a Long Island divorce attorney, contact the Badanes Law Office today at 631-239-1702 or email David Badanes, Esq. at david@dbnylaw.com.

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