Family Law

How Health Records Can Be Used During Divorce

By Kristina Otterstrom, Attorney
Medical histories may be relevant in your divorce case.

What Medical Information Do I Have to Disclose?

You may have to disclose any medical information that's relevant to your case. Although your spouse can’t go on a fishing expedition into your medical history, your ex can request records if they have some bearing on any of your divorce-related issues. For example, a judge may consider each parent’s mental health and emotional stability when deciding custody—frequent hospitalizations or mental illness may affect a parent’s ability to meet a child’s needs.

How Can I Request My Spouse’s Medical History?

You (or your attorney) can send an informal letter requesting copies of your spouse’s medical records. If your spouse refuses to produce them, you can resort to formal discovery requests such as interrogatories or requests for production of documents. You can also subpoena the information directly from your spouse’s medical providers. Your spouse may object to your requests for information by filing an objection with the court or filing a motion to quash the subpoena. However, if the requested information is relevant to your case, a judge will likely deny the objection.

Can I Limit How My Medical History Is Used During My Divorce?

Certain medical conditions or treatments may be irrelevant to your case, even if child custody and alimony are at issue. For example, you may have reasons for wanting to keep information about a nose job, past liposuction, or minor, chronic medical condition out of your case. If your right to privacy outweighs the need for the information, then a judge may agree that the medical records should be kept private. The key issue for what gets included in your case is its relevance to your divorce.

If you're requesting spousal support, records regarding a disability or a chronic medical condition that prevents you from working will need to be presented in your case. Also, records about cosmetic procedures may become relevant if your spouse is seeking reimbursement or trying to offset your alimony award. One way to prevent your entire medical record from becoming part of your divorce case is to provide your spouse with the requested information and redact portions that are irrelevant. In some situations, a judge may order you to provide medical records directly to your spouse’s attorney and the court for an in camera ("judge's eyes only") review. This prevents your spouse from seeing your private medical information, but allows a judge to analyze relevant medical information in order to decide your case.

Questions for Your Attorney

  • Are my private therapy records subject to disclosure in a divorce?
  • Do I need to provide my spouse with a list of all medications I’m taking?
  • I have a diagnosed mental illness that my spouse knows nothing about. Am I under any obligation to disclose this information?
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