The correct answer is: (B) No, because the real estate agent made the communication before she was married to the husband.
The privilege for marital communications extends to any confidential statement made between spouses during the existence of a legal marriage. When the privilege applies, either spouse can prevent the other from disclosing such confidential marital communications. In contrast to the spousal privilege, the marital communication privilege protects only communications made during, not before, a valid marriage. In this case, the statements at issue were made before the real estate agent was married. Therefore, the statements will not be protected by the marital communication privilege.
(A) Incorrect. No, because the pending divorce due to the real estate agent's dishonesty indicates the two did not share a confidential and trusting relationship.
While the reason behind the marital communication privilege is to encourage trust and confidence between spouses, the widely accepted rule is that the "quality" of the marriage will not be inquired into when determining if the privilege applies. Confidential communications made between spouses while they are legally husband and wife are privileged regardless of the quality of that marriage. Therefore, even if the husband intended to divorce the real estate agent and was pursuing a divorce, any confidential communications made before the divorce are still protected by the privilege and thus, this answer is incorrect.
(C) Incorrect. Yes, because the marital communication privilege extends to communications made before marriage, as long as the parties subsequently marry.
This answer is incorrect. While the spousal privilege does protect communications that occur prior to a marriage, the marital communication privilege does not protect communications made before a valid marriage, even if the parties subsequently marry.
(D) Incorrect. Yes, because the parties are still married.
The privilege for marital communications survives a divorce. Any confidential communications made between spouses during the existence of a legal marriage remain protected from disclosure even after the spouses divorce. However, only communications made during the marriage are protected by the privilege. Even if the real estate agent and the husband were not married at the time of the trial, the communications made during their marriage would nevertheless remain protected. Therefore, the fact that they are still married is not relevant to the privilege's applicability. Additionally, the statements at issue here were not made during the marriage, but rather, prior to marriage. Therefore, the privilege does not apply, and this answer is incorrect.
