Divorce is hard enough without your private moments being dragged into court. For some, therapy is a place of healing, and it's an intimate space to process pain, trauma, or just the confusion of everyday life. But when you’re going through a divorce, especially a contested one, your ex may look for any leverage they can find. And sometimes, that includes your therapy records.
It’s a tactic that feels like betrayal all over again. They once knew your secrets; now they want to expose them. It’s upsetting, but unfortunately, not uncommon. The good news? You have more rights than you may think, and there are steps you can take to protect yourself.
Let’s walk through why this happens, what risks it brings, and how you and your legal team can defend your privacy when it matters most.
Why Your Mental Health Records Might Be Targeted in a Divorce
When a marriage ends, especially on rough terms, emotions can shift quickly from hurt to strategy. Divorce proceedings become less about closure and more about control, custody, or financial division.
That’s when your private sessions can suddenly become ammunition.
Therapy records might be seen as a goldmine by an ex who wants to:
- Challenge your credibility
- Undermine your stability
- Gain custody leverage
- Reduce spousal support obligations
- Paint you in a negative light
This isn’t always done overtly. It might start with subtle claims like “She’s always had issues with anxiety,” or “He’s been seeing a therapist for years, maybe he’s unstable.” These statements can lead to subpoenas or demands for your records.
Suddenly, your private confessions are being treated as potential evidence. And while that feels invasive (because it is), it doesn’t always mean your ex will succeed.
But it does mean you need to understand what’s at risk and what to do about it.
How Therapy Notes Can Be Used Against You in Court
Let’s be clear: therapy notes are not meant to be legal evidence. They're clinical tools meant to guide treatment and help you grow. But once they’re in a courtroom, their context can be lost.
What was once a safe space can now become a weapon.
Here’s how that happens:
1. Misinterpretation of Language. Therapists often use clinical terms or shorthand that can sound alarming if you don’t know what they mean. A phrase like “emotional dysregulation” can be twisted to sound like someone is dangerous or unstable, when it might simply mean they’ve been feeling overwhelmed.
2. Selective Reading. An opposing attorney may cherry-pick excerpts from months or years of notes, ignoring the broader context. A single sentence can be pulled from a discussion about trauma, grief, or parenting stress and made to seem like a pattern of poor behavior.
3. Turning Healing Into Weakness. Just the fact that you’ve sought therapy can be spun as a sign you’re “not coping well,” especially if your ex hasn’t. This can be especially troubling in custody battles, where “mental fitness” becomes a talking point.
4. Undermining Your Narrative. If your legal case involves claims of emotional abuse or gaslighting, therapy records might be used to suggest you're unreliable or overreacting, particularly if you’ve doubted yourself in therapy or struggled with boundaries.
This is why protecting those records isn’t just about privacy, it’s about controlling the narrative before it controls you.
What Legal Protections Exist for Your Private Records
The law doesn’t ignore the sanctity of therapy. Several legal protections exist specifically to shield mental health records in divorce proceedings.
Therapist-Patient Privilege
This is the backbone of mental health confidentiality. In most states, such as Pennsylvania, communications between you and your therapist are considered privileged, meaning they cannot be disclosed in court without your permission.
But there are exceptions. Courts may compel disclosure if:
- You raise your mental health as a legal issue (like claiming PTSD from abuse)
- There’s a custody dispute involving a child’s well-being
- Your mental health becomes “central” to the legal case
HIPAA Protections
Under the Health Insurance Portability and Accountability Act (HIPAA), your therapy records can’t be released without your written consent. However, once a subpoena is issued, HIPAA does allow for some exceptions, especially when the court demands it.
Judicial Review
In many cases, a judge will review the records privately (a process called in camera review) to determine whether they’re relevant or admissible. This acts as a safeguard, but it’s not foolproof.
If the judge deems the records relevant to the case, some or all of them may still be disclosed, especially if there’s a compelling argument from the opposing side.
Steps You Can Take to Protect Sensitive Information
You can’t stop your ex from trying to use your records, but you can make it a lot harder for them to succeed. Here's how to start defending your mental health and your privacy:
1. Tell Your Therapist Immediately
Your therapist needs to know you’re going through a divorce. They may adjust how they take notes, use more neutral language, or be prepared to respond to legal requests. They can also guide you in understanding your rights from a clinical standpoint.
2. Avoid Signing Broad Releases
Be careful what you sign. If your ex’s attorney sends over a release form “just to move things along,” don’t sign anything without your attorney’s review. One signature could open the door to records you never intended to share.
3. Limit What You Put in Writing
Therapists often keep progress notes, session summaries, or emails. While you shouldn’t censor yourself in session, be mindful about written communication. Assume anything in writing could potentially be requested later.
4. File a Motion to Quash or Limit the Subpoena
If your ex subpoenas your records, your attorney can file a motion to prevent or narrow the scope. Courts are generally reluctant to invade therapy records unless absolutely necessary. Your attorney can argue that the request is overreaching or irrelevant.
5. Consider Waiving Selectively, but Only Strategically
In some cases, waiving privilege around very specific parts of your record can help you tell your story, especially in abuse or trauma cases. But this should only be done after careful legal consultation, and only if it truly strengthens your position.
6. Use Expert Testimony Instead
If your mental health is being questioned, it may be better to have a licensed expert evaluate you and testify, rather than handing over years of raw therapy notes. This helps control the narrative and keeps your private sessions private.
How a Divorce Attorney Can Shield Your Rights and Your Privacy
The truth is, without a strong attorney, it’s easy to feel outmatched, especially when your ex is trying to turn your healing into a liability. But with the right legal guidance, you can hold the line.
A skilled divorce attorney from Scaringi Law will know how to:
- Challenge invasive subpoenas
- Push back against irrelevant requests
- Argue for in-camera review instead of open disclosure
- Frame your mental health as strength, not weakness
- Work with therapists and expert witnesses to build your case
Most importantly, we’ll keep the focus on fairness, truth, and protecting your dignity. Because therapy isn’t a sign of failure, it’s a sign you’re doing the work. And no one should be punished for that. Let’s make sure your story stays yours.
If you're navigating a divorce and worried about your mental health records, don't wait until they become an issue in court. Reach out to us at (717) 775-7195 or fill out our online form to get started.