Mississippi Divorce Attorney Talks about Fifth Amendment Issues in Divorce Cases

The Fifth Amendment to the United States Constitution and all of the various state constitutions provide a privilege against self-incrimination. You are probably familiar with this privilege in the context of criminal  cases, where it is commonly referred to as “pleading the Fifth,” but it actually applies in all judicial proceedings, whatever their nature, if there is the risk that the individual could be incarcerated.

At this point, you are probably wondering what incarceration has to do with divorce proceedings. Some types of misconduct are subject to criminal prosecution when committed by a married individual. This is why a party will often plead the Fifth if they are asked whether they have ever committed adultery. If adultery is punishable by incarceration in the jurisdiction where the case is being tried, therefore creating a risk of prosecution if adultery is found to have occurred, than the invocation of the Fifth Amendment privilege against self-incrimination is proper.

There are situations in which a party may not invoke the Fifth Amendment privilege against self-incrimination, including any situation in which prosecution is not possible because the statute of limitations has already run. In these cases, the party or the witness must answer the question truthfully, because they could not possibly be prosecuted for their actions and therefore are not within the class of persons whom the Fifth Amendment is intended to protect.

Sometimes, divorcing parties call witnesses to testify in their divorce proceedings. If a witness could possibly be prosecuted for participating in an act of adultery or some other crime as the result of their truthful answer to a question that is asked of them on the witness stand, the witness may invoke the Fifth Amendment privilege instead of answering the question.

If this issue arises in your divorce case, it is important that you answer the question of whether you have committed adultery by invoking your Fifth Amendment privilege instead of responding in the affirmative that you have been a faithful spouse. If you make an affirmative statement that you were a faithful spouse, the issue of your fidelity is open for discussion and you may not invoke the Fifth Amendment privilege because you waived it by making your fidelity an issue.

These issues regarding the Fifth Amendment protection against self-incrimination are indicative of the complex types of issues which can present themselves in divorce cases. There is a lot at stake in any divorce case, and it is too risky to go through the divorce process without the assistance of skilled counsel. A knowledgeable divorce attorney can help you to anticipate and navigate the unique challenges of your divorce, and they can help you to understand what your options are at each step in the divorce process. Whether you anticipate settling your divorce or going to trial, Mississippi Divorce Attorney Matthew S. Poole can answer all of your questions about your Mississippi divorce. Call our office today. at (601) 573-7429, to set up a free consultation.

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Mississippi Divorce Attorney Talks about Fifth Amendment Issues in Divorce Cases
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Mississippi Divorce Attorney discusses how the fifth amendment comes to play in divorce cases.

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