Therapy Records and Divorce

Many people going through divorce seek help from a therapist. Since divorce is such a challenging life change, many attorneys generally recommend that their clients seek therapy to help them through it. It’s common knowledge that what you say in therapy is protected by medical privacy laws, just as your medical information is protected. However, there are some instances in which that very private information you discuss in therapy could become involved in your divorce case.

Medical Record Privacy Rules

Communications between a patient and therapist (or any other health care provider) are protected by privilege. This means all of the information and records cannot be disclosed and is private. The purpose of creating this protection is to allow patients to feel free to discuss anything they might need to, without worrying it will be shared with anyone else. Therapy is meant to be a safe place where you can share absolutely anything you need to without worrying that other people could find out about it.

The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that makes all medical records, including mental health records, private. Health care providers are not permitted to disclose any medical information or discuss patients except when required to by court orders or when the patient consents to disclosure. There are some situations in divorce in which the court could order disclosure of your mental health records.

Making Your Mental Health an Issue

In general, mental health records are not disclosable in a court proceeding. However, one exception is when the patient themselves makes their mental health an issue. One way this could manifest in your divorce is if you are seeking alimony and state that you need financial support because you are dealing with a mental health condition. Once you make it an issue, the other side has the right to obtain information about your mental health.

Health is a statutory factor the court must consider when determining alimony, and so is the future earning capacity of both spouses. If you raise the issue of mental health and its impact on your earning capacity and need for alimony (or on your inability to pay for alimony), then information about your condition is relevant and the other side can obtain your mental health records.

Additionally, mental health can become an issue in property division. New York divides marital property using equitable distribution, a method that distributes property in a fair but not necessarily equal way. A person’s mental health could be used to seek a greater share of the marital assets, and in that instance, the mental health records would likely be made accessible by court order.

Mental Health and Custody

In the case of alimony and property division, your mental health only becomes an issue if you make it one, so it is within your control if you want to bring it up and make your mental health information part of the case. When it comes to child custody and visitation, your mental health can become an issue whether you want it to or not.

Child custody determinations are made based on what is in the best interest of the child. A parent’s mental health, without question, impacts what is in the best interest of the child. If one parent believes that the other parent has some mental health issues that make them unfit to have custody and/or visitation, they may want the other parent’s mental health records to be obtained via subpoena, disclosed, and included in the proceeding so that they can be evaluated as part of the best interests analysis. The parent seeking mental health care often opposes this and does not want the information disclosed.

New York considers health care information, especially mental health care information, to be sensitive and privileged. If your spouse is seeking to subpoena your mental health records as part of a custody case, your attorney will vehemently oppose this and strive to protect your privacy. However, if your spouse insists the records are relevant and can convince the judge of this, your records will likely be obtained. The judge will review them to determine what is relevant and material to the case. Only those portions that are determined to be relevant will be accessible by your spouse’s legal team, admissible in the case, and considered when the judge makes the custody determination in your case. The judge will also determine if it is necessary for your therapist to testify in court.

Mental Health Records as a Strategy

In addition to the impact on the outcome of your case itself, you should also be aware that some attorneys use the threat of obtaining mental health records as a strategy to push for settlements. If you are a public figure or in a high visibility career, the release of your private mental health care information could prove damaging to your image or brand.

While it is likely the court would not allow the information included in the case to be part of the public record of the case. Once something is released, it has a way of becoming public. Threatening to involve your personal mental health history in the case is a way to try to exert leverage. Most people would not want their therapy information shared with anyone, ever, but for someone who has an image or brand to manage, it could be professionally and financially devastating.

What This Means for You

If you see or have seen a therapist or receive or have received any mental health treatment, tell your attorney. The more your attorney knows, the more easily they can protect you and plan your case. Mental health issues are nothing to be ashamed of, and getting the treatment you need is always important. Do not refuse treatment out of fear that it could impact your case. Your mental health is the most important thing and if you need treatment, get it. It is simply a good idea to let your attorney know of any diagnoses, treatments, or mental health issues. They can then work with you to obtain the best possible outcome in your case.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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