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

Confidentiality is important for people in therapy to be able to form a trusting relationship with their therapist. Confidentiality is also important legally because it protects the person in therapy and the therapist in circumstances where they may find themselves in a court of law. Below, several therapists explain confidentiality as it pertains to couples therapy and couples that file for divorce:

Therapist Jeffrey Kaplan
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.

Therapist Ruth Hoffman CooperRuth 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.

Therapist Amy WinchesterAmy 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.

© Copyright 2014 GoodTherapy.org. All rights reserved. Permission to publish granted by

The preceding article was solely written by the author named above. Any views and opinions expressed are not necessarily shared by GoodTherapy.org. Questions or concerns about the preceding article can be directed to the author or posted as a comment below.

  • 8 comments
  • Leave a Comment
  • Ben

    Ben

    July 29th, 2015 at 4:40 PM

    In Ca. Civil court can your spouse have the marriage counselor divulge the fact you have on occasion drank or smoked marijuana to the judge.

  • Lori

    Lori

    January 26th, 2017 at 10:26 PM

    Is the therapists required to keep case notes? If so in co-parenting therapy can one request the note without each others permission?
    Thank you,
    Lori

  • Taken

    Taken

    January 22nd, 2019 at 1:33 PM

    Went to marriage counseling. Turns out the counselor was also spouses divorce attorney’s paralegal who typed up the no fault.

  • Angel B.

    Angel B.

    March 20th, 2019 at 6:18 PM

    I really appreciate that all marriage counseling sessions are kept confidential and are protected by privacy laws from being used in court. Aunt Tina and Uncle Tom would highly appreciate this because they might have said a lot of incriminating, even anger-motivated, stuff during their dialogues with their marriage counselor. It’s comforting that counselors could only divulge generic statements on the topics covered during meetings.

  • MCS

    MCS

    January 28th, 2020 at 10:08 PM

    This is very good information for us. This is interesting and impressive article. Please keep it up.

  • I.C.

    I.C.

    July 9th, 2020 at 5:56 PM

    The best gift you can give to a newly engaged couple-send them to marriage counselling. Some Churches make this mandatory. All of the above mentioned can help to learn what your partner is expecting, your expectations, how to handle important issues, if you are compatible or if the marriage is not ideal.

  • Jenae

    Jenae

    August 3rd, 2020 at 9:16 AM

    Your messages definitely helped me through my breakup. About a year and a half ago my boyfriend of four years and I broke up and I desperately wanted him back, and because of some of the advice you had given, I was able to! Time went on and things were back to the way they were, and were not together anymore, and it’s okay. I wouldn’t have been able to go through the realization process had I not read these, as well. Your messages were very beneficial to me, though I don’t need them anymore, they were always appreciated. Thank you so much! 
    – Jenae

  • michelle

    michelle

    September 29th, 2020 at 1:10 PM

    My dad has been going to marriage counseling for last few years trying to get my step mom to acknowledge my sister and be part of the family, she has depression and is a compulsive liar but my dad kept on it for 11 years to save his marriage. My dad had to stop because of the lies that were told to the therapist started to be one sided, she believe my step mom, now they are getting divorced and that therapist made my dad out to be a died beat, she is going for sole custody, Can the therapist do that, he doesn’t have depression or any other health problems. Can the therapist really be a character witness?

Leave a Comment

By commenting you acknowledge acceptance of GoodTherapy.org's Terms and Conditions of Use.

* Indicates required field.

GoodTherapy uses cookies to personalize content and ads to provide better services for our users and to analyze our traffic. By continuing to use this site you consent to our cookies.