• Ross Stancati

Can you plead the Fifth Amendment in Divorce?

Updated: Sep 25

It is not rare that during the course of a long or short marriage that some criminal activity occurs by a spouse.

A criminal activity, if becomes known, could possibly affect the division of property, custody, child support or spousal support.

As an example, a business owner who does not report cash income on his or her tax return is breaking the law.

In trial or deposition, that business owner could be asked whether he or she did indeed intentionally not report to the IRS, cash received in the business. If the business owner testifies under oath that he or she does report cash, that owner would be committing perjury, a criminal offense. If he or she testified under oath that he or she does not report cash on his or her tax return, he or she is committing a federal offense of lying on his or her tax return in a public forum.

So, what does this business owner do? He or she says, “On advice of counsel, I refuse to answer your question. I am taking the Fifth Amendment.”

Can a business owner do that? Yes, he or she can.

The Fifth Amendment to the United States Constitution in part says, “nor shall be compelled in any criminal case to be a witness against himself.”

The privilege against self-incrimination not only permits a person to refuse to testify against himself or herself at a criminal trial in which he or she is a Defendant but also permits him or her not to answer official questions put to him in any proceedings, civil or criminal, formal or informal, where the answers might incriminate him or her in future criminal proceedings. Phillips vs. Deihm 213 Mich App 398 (1998).

Taking the Fifth is a privilege and under our Court rules if you take the Fifth and refuse to testify about certain matters, then under MCR2.306(D)(5) a party who claims a privilege at a deposition may not at trial offer any testimony on that subject matter.

So, if you take the Fifth on a subject you cannot testify at trial on that subject matter and as a result, the only testimony the Court will hear on that subject matter will be the testimony of the other party.

One further detriment that comes with taking the Fifth is that the trial Court is permitted to draw adverse inferences against you relative to the subject matter in a civil matter and a divorce action is a civil matter. Phillips, supra.

Ross Stancati practices in Kalamazoo County, call today at 269-381-4471.


121 W Cedar Street

Kalamazoo, MI 49007

All information provided on this site should not be construed as legal advice.   Always meet with an attorney to find out your legal options.

Copyright 2020 Stancati, Hencken & Greenlee P.C.