Can counseling hurt you during a divorce?

The answer is a resounding yes, if the divorce goes through the traditional process of court litigation. The answer is a resounding no, if the alternative—collaborative divorce—is chosen.

We see a lot of people who are in tremendous emotional distress. They are wondering if their marriage is headed for divorce. Their world seems to be crumbling. It all feels overwhelming.

But they are not alone and there’s plenty of help. Some choose mental health counseling. But many are afraid to see a psychologist or therapist because it might be—and can be—used against them if a nasty divorce is inevitable; it is not at all unusual for a litigation lawyer to subpoena mental health records.

In divorce matters, the effort to get therapy records is often related to child custody disputes. One parent’s lawyer is attempting to show that the other parent is not fit, or is less fit, to have custody of the children because of their emotional or mental health. It’s not hard to make the legal argument that in many situations, therapy records of a parent would be relevant in court to bear on what custody arrangement is in the best interest of the children.

Conversely, the law recognizes a strong patient-healthcare provider privilege for communications between the therapist and client. The law recognizes the interest in protecting people who desire mental health care. As a society, we want to encourage people to get their mental health needs met without fear of disclosure. The therapist-client privilege is contained in the North Carolina general statutes.

In divorce court, the competing interests of protecting children and of protecting mental health clients clash. It’s hard to guess, in any particular case, whether a judge will admit therapy records or not. But it’s extremely scary to think that a therapist’s notes may find their way into court proceedings, even if there are protections from public disclosure and other safeguards.

The collaborative divorce process can include mental health professionals. These psychologists or counselors assist in designing an appropriate plan that both spouses agree is in the best interests of the family, including the children.

In the collaborative process, neither spouse is going to be torn apart on the witness stand by being confronted with notes taken by their therapist because collaborative divorce proceedings happen outside of a courtroom. In a much healthier and meaningful way, the collaborative process takes into account legitimate mental health concerns and the emotional turmoil common during divorces. Decisions are made in the best interests of the welfare of both spouses, and, most importantly, of the children.