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Going through a divorce can be an incredibly difficult and emotional time. Many people seek therapy during this process to help cope with the many changes and challenges.

However, if you see a therapist during divorce proceedings, it’s important to understand how your therapy records could be impacted.

This article will provide an overview of how divorce can affect the privacy of therapy records, issues around subpoenas, and steps you can take to protect confidentiality.

Why Your Therapy Records May Be Relevant in Divorce Case

During contested divorce cases, especially child custody disputes, a spouse may attempt to subpoena the other spouse’s therapy records.

Some reasons therapy records could be considered relevant include:

  • Providing evidence of parental fitness and impact on child custody. For example, suppose therapy records contain information related to substance abuse, domestic violence, or mental health issues. In that case, the other spouse may argue that this information is pertinent to determining the custody arrangement in the child’s best interest.
  • Assessing the impact of divorce on emotional state. If one spouse alleges the other is emotionally unstable due to the divorce, therapy records could be subpoenaed to try to prove that claim.
  • Determining spousal support. In some cases, therapy records have been subpoenaed if one spouse tries to claim the divorce has severely impacted their mental health and ability to work, which could affect spousal support amounts.
  • Reconstructing timeline of marriage breakdown. Therapy notes may provide insights into when relationship issues began emerging.

While these examples show why therapy records could be relevant in some divorce cases, it’s important to understand the privacy issues surrounding mental health information. Consulting an experienced family lawyer is essential to protect your rights.

How Therapy Records Can Impact Divorce

In certain situations, undergoing counseling during a divorce may work against you if those records portray you negatively, such as:

Custody Disputes

If you’re seeking sole physical custody of your children, your spouse may try to obtain your therapy records to prove you’re an unfit parent. For example, if you disclosed violent tendencies, suicidal thoughts, or an inability to care for your children, it could convince the court your spouse deserves primary custody.

Financial Awards

Information in your therapy records could also affect spousal maintenance awards. If mental health issues make it difficult for you to hold down steady work, it may justify granting less alimony to you.

Misconduct Allegations

Finally, counseling records that contain admissions of adultery, domestic abuse, or other marital misconduct could substantiate those claims if your spouse alleges them as grounds for an at-fault divorce.

Can My Therapist Be Subpoenaed in a Divorce Case?

In contested divorces, the opposing legal team can send a subpoena to your therapist requesting notes, records, or even testimony related to your treatment. The subpoena is a legal demand for information relevant to the divorce case.

Your therapist cannot simply ignore a subpoena. They are legally required to respond, even if that means disclosing your confidential therapy records. However, there are important exceptions that a skilled lawyer can use to fight the subpoena and protect your privacy rights.

Can a Therapist’s Testimony Be Compelled?

In addition to seeking therapy records through a subpoena, your spouse’s divorce lawyer could attempt to compel your counselor or therapist to testify. A therapist can be required to attend a deposition or court hearing and answer questions about your treatment and mental health relevant to divorce issues.

However, state law places some limitations on therapist testimony to protect patient privacy. The therapist’s office must be located in Minnesota. Out-of-state counselors cannot be compelled.

Testimony cannot breach therapist-client confidentiality privileges regarding private communications unrelated to the divorce. At a deposition, your therapist can have your lawyer present to object to irrelevant questions.

At a court hearing, the judge decides if a question violates privilege rules before your therapist has to answer it.

Restricting Access to Your Therapy Documents

If your spouse’s divorce lawyer files a subpoena for your counseling information, don’t assume you must hand everything over.

You have options like:

  • Ask your therapist to release only relevant records: Have your counselor carefully review your therapy notes and records and release only facts applicable to your divorce issues. They should not disclose anything unrelated.
  • Get a protective order: Your divorce attorney can petition the court for a protective order limiting access to certain mental health treatment records. This helps shield overly personal or sensitive information.
  • Request redactions: Ask for confidential or irrelevant information within your records to be blacked out or removed before anything is handed over to your spouse and their attorney.
  • Negotiate a confidentiality agreement: Your lawyer may be able to craft an agreement restricting your spouse from sharing your private therapy information with others besides their lawyer and the judge.

The Minneapolis divorce lawyers at Martine Law understand how to vigorously defend your right to confidentiality regarding mental health treatment while meeting disclosure requirements under Minnesota law. We have successfully protected clients’ privacy in divorce cases involving therapy records.

Contact Martine Law today to discuss your situation if you’re concerned about your therapy notes or counselor being brought into your divorce. We provide experienced legal guidance customized to your unique needs and concerns.