How can I speak freely and off the record with my spouse without what’s I say being used against me?
QUESTION: Is there a legal remedy where an ex-husband and wife in the middle of a custody battle can speak freely and off the record through their lawyers without fear of what’s said being used against each other?
ANSWER: If you are worried about whether speaking freely in the course of trying to negotiate a settlement of the child custody issues, I can answer that question. In Utah, where I practice, settlement negotiations are, with a few rare exceptions, inadmissible in court.
Utah’s (and many states’) rules of evidence are similar to the federal rule of evidence on this subject:
Rule 408. Compromise Offers and Negotiations
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Utah Rules of Evidence, Rule 408. Compromise Offers and Negotiations:
(a) Prohibited Uses. Evidence of the following is not admissible either to prove or disprove liability for or the validity or amount of a disputed claim:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in order to compromise or attempt to compromise the claim; and
(2) conduct or a statement made in compromise negotiations.
(b) Exceptions.
(1) The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
(2) The court is not required to exclude evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
2011 Advisory Committee Note. – The language of this rule has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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