The fifth amendment to the U.S. Constitution gives every individual the right against self incrimination. While this right is typically invoked in criminal proceedings and Congressional hearings, it is also seen in civil cases including divorce proceedings.

Maryland Divorce Lawyers know that the right to refuse to testify frequently arises in cases involving adultery. Pursuant to Section 10-501 of the Maryland Criminal Code, adultery is a misdemeanor punishable by a fine of up to $10. This ancient state law gives errant spouses an alternative to admitting adultery or committing perjury.

“ Murderers and rapists can invoke the privilege without consequence. Parties to divorce are well advised to think strategically.

Unlike the criminal law arena, the court may draw an adverse inference from the invocation of the refusal to testify. This can be costly in a marital property dispute.

In Turner vs. Turner, there was evidence that husband had used illegal drugs and was involved with another women during the marriage. He invoked the right not to answer questions relating to his withdrawal of funds from a joint bank account of husband and wife. Wife claimed that he had dissipated these funds. The trial court agreed and her award under the Marital Property Act was augmented as a result. This decision was upheld on appeal. In part the appellate court upheld the ruling on the grounds that it was appropriate to draw an adverse inference from husband’s decision to plead the fifth.

The take away from this opinion is that murderers, rapists and other felons can invoke the privilege without consequence. Parties to divorce are well advised to think strategically. It may be a way of avoiding embarrassing testimony but can be costly.