Q. My husband and I are both representing ourselves at our upcoming divorce trial. He provided his list of exhibits today which include recorded conversations of me that I did not know he made. In his email he said he plans to testify about all kinds of things I said to him about my family years ago so that he can get a transcript of the testimony and use it to encourage them to write me out of family wills. He thinks he can blackmail me into settlement.
The reading I have done suggests he cannot testify about conversations we had. How do I prevent him from doing this? I come from a highly religious family where an oath means something. I have a mentally ill wealthy mother who just looks for reasons to write us all out of her estate plan so I actually am worried about this threat.
You need to beat your husband at his own game. Offer the email he sent you attempting to blackmail you into settlement as your Exhibit 1 at trial. If he objects to your adding an additional exhibit, provide it to him in advance of trial and tell the judge the document did not exist until the deadline on which to exchange exhibits so you ought not to be penalized by his late blackmail attempt.
You should also make a motion in limine, which means to limit evidence. In your motion, ask the judge to prohibit him from offering any recordings of conversations with you because you never gave him permission to record you. You need to read your trial order carefully because motions in limine usually need to be scheduled for hearing at least 10 days before trial — don’t miss that deadline.
As for conversations, who else was present when you and your husband had these discussions? If you were alone, it was a private marital conversation which, according to Massachusetts law (Chapter 233, section 20) means you cannot testify about the contents. In Massachusetts we take this quite seriously — it is not a mere privilege which can be waived but rather a disqualification. However, if you do not timely object to the testimony, the judge will allow him to talk.
You should include in your motion in limine a request that he not be allowed to testify about husband and wife disqualified conversations. While it is a given, it sends a signal to him that he cannot do it.
For good measure, it wouldn’t hurt to call your mother and tell her just how crazy your husband has become and that he is making up all kinds of crazy stories and trying to blackmail you. That way even if he gets to her, she is warned and his plan will not have the desired effect.