Can What My Partner and I Talk about in Couples Therapy be Brought up in Court if We Get Divorced?

Jeffrey Kaplan, MA, LMFT: Therapists who are licensed in their state to do couples therapeutic work must follow a canon of ethics that is strictly laid out as a part of their licensure. This includes Licensed Marriage and Family Therapists (LMFTs), Licensed Clinical Social Workers (LCSWs), psychologists, psychiatrists, and Licensed Mental Health Counselors (LMHCs).

These ethics describe how information is kept confidential in sessions by law, and that privacy laws protect the participants in therapy very strictly. Even when subpoenaed by a judge, the therapist remains limited in what they are able to disclose. Most often the limits extend to generic topics in session, rather than the specifics of what occurs. It is also a rarity that therapists get requested to go to court proceedings based on these limitations, depending on your specific state laws.

The only exception to the legal statute of confidentiality is in regard to health risks to oneself or anyone else. Typical examples include thoughts of suicide or child abuse. Licensed individuals are mandated reporters, and are required to break confidentiality if these issues are presented in session.

However, while this question has legal ramifications, ultimately it regards what information is kept secret in session. Working with couples and families has this particular drawback: whatever you say in session is not kept confidential from your spouse, if they are also in the room listening to it. It is for this reason that many therapists seeing couples will not see them individually, or describe specific things which they will not agree to keep secret, including any infidelity or affairs. Again, this also regards confidentiality with respect to suicide, homicide, child abuse, or anything else which describes a specific intent to injure self or others.

Ruth Hoffman Cooper, MFT: Theoretically, yes, but only under rather unusual circumstances. First off, you can get a no-fault divorce in all fifty states, so it doesn’t matter why the couple is getting divorced—they just state “irreconcilable differences” and divvy up their assets and debts, so usually a therapist’s records would be totally unnecessary.Secondly, what each of you talk about is legally privileged information, and each of you holds the privilege for the information about you. If one of you hires a lawyer and that lawyer contacts the therapist, asking to depose the therapist, or asking for records, the therapist has a legal requirement to refuse. The therapist would then contact both of you and ask if you each want to consent to permit the therapist to disclose your information. That consent would have to be provided formally, in writing, on a specific form, in clear language. If you deny the request, then the therapist can only share information with the court if they are ordered to do so by a judge. Even then, the therapist can state that he or she feels it would be damaging to the client(s), and request to not have to disclose confidential information, or to limit the disclosure in some way.

If you are expecting a legal battle before you start therapy, perhaps because of custody issues, by all means let the therapist know in advance. The therapist will use extra care with what is put into the case notes, so that they are as factual and clear as possible.

Amy Winchester, MA, LPC: Legal issues vary by state, so it’s always best to seek legal advice from someone qualified that practices in the state where you live. Generally speaking, though, licensed therapists operate under statutes that require them to keep the information you discuss in therapy confidential (meaning that it cannot be disclosed to anyone else), with certain limited exceptions including instances where a person in therapy is a potential harm to themselves or to another person or people.If a client grants permission for these records to be made a part of legal proceedings, then the therapist can share any information they have. Couples therapy is similar, however, both people must grant permission for information to be shared. If one of the parties does not grant permission, the therapist is obligated to maintain confidentiality.