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Divorce and Criminal Trial Run at Same Time in Houston County, Alabama


In an ideal world, you wouldn’t have to go to court for anything let alone have more than one lawsuit going at once. What happens in those situations? Do both lawsuits keep running at the same time or only one at a time?

In Houston County, Alabama, in Ex parte T.K., the court addressed whether two related lawsuits could run simultaneously. In March 2016, a Henry County grand jury indicted a husband for sexual abuse in the first degree against his child. Two months later in May, the wife filed for divorce, seeking sole physical custody of this child. The wife sent 37 interrogatories (written, legal questions) to the husband.

I have a real issue with this situation. A person has an absolute constitutional right to not provide incriminating evidence in a criminal case under the Fifth Amendment. Participating in a civil case and answering questions that may affect your rights is not only wring it is unconstitutional.

In response, the husband filed a motion asking the court to put the divorce proceeding on hold until the criminal trial was finished. The wife objected because she was not receiving child support and some of the interrogatories from the divorce proceeding included child support calculations. In September, the trial court denied the husband’s motion, telling him to provide information for the child support calculations and to respond to the wife’s interrogatories.

The husband then filed a motion to the Court of Civil Appeals, alleging that the lower court had been wrong in requiring him to respond to the wife’s discovery requests. The husband’s specific problem is with his Fifth Amendment right against incriminating himself in his criminal trial; he was worried that the answers given in the divorce matter could be used against him in his criminal trial.

The Court applied a test for when criminal charges are pending against one of the parties to a divorce. In these situations, the Court considers (1) whether the civil proceeding and criminal proceeding affect each other; (2) whether the objecting party’s Fifth Amendment rights to not incriminate himself will be threatened if the civil matter is not placed on hold; and (3) an additional balancing test.

The Court found that the divorce case and criminal case do not affect each other because the husband was not seeking custody and the wife was not looking for a divorce based on the sexual abuse. The Court also found that there was only one question in the interrogatories that overlapped with the criminal trial; the husband could specifically object to that based on his Fifth Amendment right, while answering all others.

Finally, because the husband did not address the balancing test factors, neither did the Court. The Court agreed with the trial court, allowing the calculation of child support and interrogatories to be answered.

The main takeaway here is that when the two cases do not directly impact each other or offend a defendant’s constitutional rights, both cases will proceed at the same time.

However, if you have acriminal case and a divorce pending at the same time, you should have an experienced, knowledgeable attorney on your side to ensure those rights are protected. Contact INGRAM LAW LLC at (205) 335-2640 for an attorney with the experience and knowledge that can make all the difference

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