Often times family law cases involve one party with pending criminal charges. I most often see this connected to a family violence allegation, but any type of pending criminal charge is usually relevant in a family law matter. If a party has pending criminal charges that touch on the issues in the family law case, they can be very detrimental to that party’s case.
If a party has pending criminal charges, that party will almost certainly not be allowed to testify by his or her criminal attorney. If that party does not have a criminal attorney yet, the family law attorney should know enough about criminal law to strongly advise the party against testifying in the family law matter. Even if the party believes he or she is completely innocent and has nothing to hide, any criminal law attorney will still tell his client not to testify. For one, the party’s testimony could be used against him or her in the criminal case. If the party makes any type of admission related to the incident the basis of the criminal charges, it could mean jail time, a worse plea agreement, and/or a more likely conviction. Even if the party does not make any admissions, if his or her testimony changes in any way by the time the criminal case rolls around, it will damage the party’s credibility and increase the chances of a poor outcome in the criminal case.
The party with pending criminal charges will have to invoke the fifth amendment and refuse to testify in the family law case. While pleading the fifth amendment in a criminal case cannot be held against you, the same is not true in a family law case. If one party pleads the fifth, the judge can hold it against that party. As a result, whenever possible, if I am representing a client with pending criminal charges, I try to delay the family law case as long as possible in the hopes that the criminal case is resolved. Once the criminal case is resolved, that party is free to testify in the family law matter. That testimony can no longer be used against him or her in the criminal case.