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Posted on August 1, 2020

Can You “Take The Fifth” During An Illinois Divorce Case?

Most people’s exposure to the legal system is usually in the form of crime movies where the alleged criminal says “I plead the fifth” in order to avoid testifying to something.  The movie judge, inevitably, shrugs their shoulders and the alleged criminal doesn’t have to testify.  Does this happen in real life? Specifically, can you “Plead the Fifth” during an Illinois divorce case?

What Is “Pleading the Fifth” or “Taking the Fifth”

The Fifth Amendment of the United States Constitution has a clause which reads, “No person… shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend.IV

This clause in the United States Constitution has been held to be a privilege against self-incrimination.  This privilege allows any person to refuse to answer a question wherein they may be testifying AGAINST themselves.

Invoking this privilege against self-incrimination is called “Pleading the Fifth.”

To “Plead the Fifth”, one must merely say “I plead the fifth.” A person can plead the fifth in court, in a deposition, or anywhere really if they are asked a question they believe the answer to which could hurt them in some way.

For a court to allow that “pleading the fifth” privilege to completely excuse testimony is another story.

“To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479 (1951)

In a divorce case, almost everything that comes out of a divorcing party’s mouth could potentially hurt them.  So, why doesn’t everyone “Plead the Fifth” in an Illinois divorce?

“Pleading The Fifth” In An Illinois Divorce Case

The Fifth Amendment is obviously applicable in a criminal case. The clause even specifies that it is to be applied in a “criminal case.” The person being asked to testify is accused of a crime. So, whatever they might say could clearly implicate themselves in the crime they are accused of.

In a civil case, where the court is trying to resolve a dispute between two parties, there isn’t an overarching fear of criminal prosecution…but there might be if the statement implicated the party in a separate existing or possible criminal case.

Furthermore, a statement doesn’t just have to be testimony by a party.  A statement could be documents that the party controls and is asked for by the other side through the discovery process.

“As with any other statement, the “statement” made by producing requested documents is privileged under the fifth amendment only if it meets the three requirements for such protection: that is, the act of production itself is compelled, testimonial, and incriminating” Mueller Industries, Inc. v. Berkman, 927 NE 2d 794 – Ill: Appellate Court, 2nd Dist. 2010

So, why can’t every single divorce litigant merely claim to be possibly cheating on their taxes and therefore be possibly subject to criminal penalties.  Doing so would be a valid reason to “Plead the Fifth” for both testimony and production of documents.

Well, you are welcome to try this strategy (many have) but you will find that “Pleading the Fifth” during an Illinois divorce will blow up in your face.

“[A] number of jurisdictions have overwhelmingly rejected the contention that a plaintiff in a civil action may invoke the fifth amendment privilege against self-incrimination while still maintaining the lawsuit.” In re Marriage of Roney, 773 NE 2d 213 – Ill: Appellate Court, 4th Dist. 2002

In Illinois, a divorce suit may be dismissed outright because of the invocation of the fifth amendment. 

“Although it is true that plaintiffs cannot be forced to involuntarily incriminate themselves, we do not believe they should be permitted to use the Fifth Amendment privilege as both a shield of protection and a sword of attack. Plaintiffs have forced defendants into court. It would be unjust to allow them to prosecute their cause of action and, at the same time, refuse to answer questions, the answers to which may substantially aid defendants or even establish a complete defense.” Galante vs. Steel City National Bank of Chicago, 384 N.E.2d 57 (1978)

In an Illinois divorce case, what’s more likely to happen is that the invoker of the Fifth Amendment will be denied presentation of ANY evidence. This will allow the other party who filed the Petition for Dissolution Of Marriage or a Counter-Petition For Dissolution Of Marriage to put their case on without interruption and obtain what is effectively a default divorce

Finally, if you imply that testifying to something or turning over a document could implicate you, expect to have the police, the FBI or the IRS knocking at your door shortly.  An Illinois judge may report suspected criminal conduct to a prosecuting authority (but, curiously, they are not required to). Ill. Judges Ass’n Ethics, Op. 2002-01, p. 2 (Oct. 2002).

There Are Other Ways To Keep Evidence Out Of A Divorce Court

Instead of pleading the fifth, a divorce litigant can invoke any number of other privileges to keep information away from an Illinois divorce court’s possible examination.

Typically, any document between an attorney and client, therapist and client, priest and parishioner, even an accountant and client, will have some kind of privilege associated with that document that can keep private information private.

Any attempts by the opposing side to subpoena your private information when it’s held by a third party can be stymied, at least temporarily, by a motion to quash on the basis of whatever privilege you are invoking.

If you’d like to “take the fifth” in your Illinois divorce, you should probably stop watching movies and start talking to an experienced Chicago divorce lawyer

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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