well howdy, howdy.
it’s been a tad long, i apologize, my days have been going from 0mph – 100 in seconds. but things are slowly settling back down, so here i am again.
coincidentally, it’s valentine’s day. so yes, it’s valentine’s day, but eh, yeah, it’s valentine’s day. but do you know what that means? someone– a pretty fashionable someone, who writes a blog about law, and isn’t completely terrible at it– had a birthday yesterday. i did most of my celebrating over the weekend. i drove to arizona to see one of my best friends from my dorm at grand canyon university. she surprised me with a dinner at a place i’d never gone to before– benihana. and i had such a great time, but because my birthday was on a monday, realistically, i had work and class and all i was thinking about was how far behind i was. and quite frankly, still sort of am. — cue me writing this blogpost.
in my class yesterday though, we were going over statutory elements, and it was interesting because the relationship between the attorney and the client is almost as bonding as the relationship between a husband and wife. as an attorney, you are obligated to do whatever your client says. all you can do is give realistic advice, but you can never go against their wishes. that’s malpractice. that’s why you’ll never hear me, *not an attorney, giving legal advice. of course, friends know i’m not half-witted when it comes to law, so sure they come to me for somewhat advice. but the first thing i tell them is that i can’t give any kind of legal advice, but i’ll give them the number to legal aid– who does free legal consultations.
anyways, statutory elements, sorry about that.
so let’s get into a scenario.
say a husband and wife are in the car, their two boys, both under 5 years old, and the husband is drinking, heavily, while driving. the wife, as time goes on, gets fed up with the husband’s antics and files for divorce. in reasoning with the judge to get some kind of possible punitive damages– or whatever else an attorney can (and will) conjure up–, the wife cannot use that situation against the husband. but then again she can. but then again she can’t.
that’s how the statute explains it.
“in all actions, husband and wife may (there’s the can) testify for or against each other, provided that neither (there’s the can’t) can testify as to any communication or admission made by either of them to the other during marriage except in (there’s the can, again) in actions:
a. between such husband and wife, and (meaning both need to be true)
b. where the custody, support, health or welfare of their children or children in either spouse’s custody or control is directly an issue.”
to make that easy for you, basically, if the husband and wife testify against each other which they can do, they, if they’re married at the time the event in which they’re trying to provide as evidence, can’t use it against the other in court. unless they are husband and wife at the time of the event, and their kids are in direct variation with the issue at hand. if they’re not legally married, you can use it against them. if you’re married but your kids aren’t in the car, you can’t use it against them. if they are, then you can, only if you’re married.
that’s insane right? if i’m married to someone, of course i’m not going to have my kids in the car with their alcoholic father, but i can’t use that against him if i’m trying to show that in a court room. it would be dismissed.
to make it even more unruly, let’s add to it.
say the husband while driving, again, ran a stop sign. his vehicle hit another which was driven by, let’s call him sam. the wife and two kids were passengers in the car. the day after the wreck, the husband admits to knowing that he ran the stop sign because he was under the influence. when sam sues the husband for negligence, the wife can’t tell the conversation if she testifies in the court against him. because they’re married, and because their children aren’t an issue of what’s being argued in court. if legally separated when the trial is happening, the wife still can’t, because they were married at the time of the conversation.
if they’re getting a divorce, she can, because their kids are a direct issue.
hard to remember, huh?
i thought so too. but it caught my attention, so i thought instead of actually doing what i need to (studying) i’d share it with you.
i promise we’ll talk again soon.