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#591197 - 12/21/09 09:46 PM Adultery and asserting the fifth
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
Has anyone heard of how this turns out? This is what my husband answered on the cross-complaint.

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#591198 - 12/21/09 10:37 PM Re: Adultery and asserting the fifth [Re: english7]
pokey Offline

Pooh-Bah

Registered: 07/16/09
Posts: 1786
guilt as far as I'm concerned
_________________________
I have to go to work. Too many people on welfare depend on me.

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#591199 - 12/22/09 09:12 PM Re: Adultery and asserting the fifth [Re: pokey]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
4. Must the proceeding be criminal? Or, may it be a civil matter?
The Fifth Amendment may be asserted in a civil proceeding. But, it may be asserted only
in instances in which the answer might tend to subject the person to criminal responsibility.

13. Suppose what your client fears is not prosecution of a crime, but instead
embarrassment and humiliation? What if he simply dreads scorn of his community?
The Fifth Amendment is not available to help a client avoid embarrassment.

15. What if the only possible liability is civil liability?
The Fifth Amendment is not available for concerns relating merely to civil liability.
In Cantwell v. Cantwell, the Court of Appeals affirmed the dismissal of a wife's alimony
claim after she pled the Fifth in response to questions about her own adulterous activities. 109
N.C.App. 395 (1993). The wife had based her claim for alimony, in part, on the premise that she
was a dutiful and faithful wife. Id. The husband responded with the affirmative defense of the
wife's adultery. The Cantwell court concluded that the wife could not remain silent and maintain
her alimony action.
[censored]://[censored].tharringtonsmith.com/files/media/media-speech/5thAmendmentSpeech.PDF

I'm wondering how his military career might be affected with this claim of the 5th. I can't understand why else he would use this privilege. Any ideas?

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#591200 - 12/22/09 09:36 PM Re: Adultery and asserting the fifth [Re: english7]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
From Virginia Lawyer magazine, Dec. 2009, Vol. 58. Again, it refers to resulting CRIMINAL prosecution, which I don't think comes into play here:

"The privilege applies
to testimony that may create a reasonable apprehension
of prosecution by the witness. But the
Fifth Amendment “does not provide a blanket
right to refuse to answer questions.”6 It is up to
the judge to determine whether the privilege is
properly invoked, and that means that “some
investigative questioning must be allowed.”7

A witness need not give testimony that could
lead to criminal prosecution. In other words,
there must be some identifiable criminal charge
to which the questionable testimony would support
or provide a link to evidence to support the
charge.8 To sustain the privilege, “it need only be
evident from the implication of the question, in
the setting in which it is asked, the responsive
answer to the question or an explanation of why
it cannot be answered might be dangerous. …”9"

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#591201 - 12/22/09 09:51 PM Re: Adultery and asserting the fifth [Re: english7]
Atlas Offline

journeyman

Registered: 11/03/09
Posts: 80
I think you need to provide a bit more information here. Why is the accusation of adultery relevant here? Is there a pre-nuptual issue? Is he seeking alimony based on claims of fidelity?

If it's simply an embarrassment issue, it should be entirely irrelevant to splitting assets or determining custody.

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#591202 - 12/22/09 10:20 PM Re: Adultery and asserting the fifth [Re: Atlas]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
Grounds for divorce. He filed for no-fault, I countered with adultery and cruelty. I'm just wondering why on earth the fifth ammendment would be of any help to him if he is hoping for a no-fault. We haven't gotten to the assets or support issues yet. My understanding is that he is planning to deny me all requests for relief.

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#591203 - 12/22/09 10:43 PM Re: Adultery and asserting the fifth [Re: english7]
Redlegg Offline
Carpal \'Tunnel

Registered: 10/06/06
Posts: 27903
UCMJ

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#591204 - 12/22/09 10:43 PM Re: Adultery and asserting the fifth [Re: english7]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
From VAFamilylaw.com:

"Is the 5th Amendment going to shield me from admitting to an affair (adultery)?
Maybe. The 5th Amendment privilege can be used when there is a risk of criminal prosecution. In Virginia, the statute of limitations for prosecution of adultery is one year. This is a tricky privilege, because it can be waived if not careful about asserting the privilege throughout the line of questioning about adultery."

So, he can assert this privilege unless the act happened less than one year ago....?

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#591205 - 12/22/09 10:49 PM Re: Adultery and asserting the fifth [Re: english7]
Redlegg Offline
Carpal \'Tunnel

Registered: 10/06/06
Posts: 27903
UCMJ.

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#591206 - 12/23/09 12:09 AM Re: Adultery and asserting the fifth [Re: Redlegg]
english7 Offline

Carpal \'Tunnel

Registered: 11/27/09
Posts: 3165
Yes, Red, I read it over before, especially the parts regarding domestic abuse and family support, but it seems highly unlikely a commissioned officer would be punished.

My experience has been what is stated as unjust in the UCMJ is not punished. "An act in violation of a local civil law or of a foreign law may be punished if it CONSTITUTES A DISORDER OR NEGLECT TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES. How can adultery cause a disruption of order and discipline of a unit? Two members, maybe. Fratnernization, yes. But a wife's damage, not even remotely. I guess that's why I think the military court should not be involved in member-spouse adultery. It just does not affect the military, with the exception of hours taken to investigate.

I read Article 133 & 134, par. 59c and KNOW he has not behaved as a gentleman in so many ways (that they know about). Makes me want to gag.

They already investigated him on the adultery. His paramour and others testified. As far as I can see, nothing resulted from it; however, they do not share that with spouses. Once they got the info they wanted from us, they were silent and he deployed.

How can he claim that his admission of adultery in divorce court could cause his career to be damaged? It has not been hurt so far, and I know they investigated thoroughly.

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