Family Law

Divorce: Can My Spouse Obtain My Medical Records Without a Subpoena?

By Kristina Otterstrom, Attorney
Protecting medical information during a divorce.

Can I Keep My Medical Records Private?

During your divorce, you can ask your spouse to produce information that's relevant to your case, and in some cases, this may include medical records. However, there are limits on how and when a spouse can obtain copies of the other’s medical information. Before a judge will order one spouse to produce personal information like medical history, the requesting spouse must prove that the information is relevant to the divorce and that the need for the information outweighs the producing spouse's privacy rights.

For example, if your spouse serves you with a discovery request for copies of your medical files, you can object to the request based on privacy or relevance, or you can provide the information to your spouse. Even if you’ve filed an objection or a motion to quash (dismiss) your spouse's request, a judge may still deny your objection and require you to provide the medical information if it’s relevant to your case.

Medical History Can Be Relevant to Alimony

Although medical history doesn’t have much to do with how much property you receive in a divorce, it can be relevant to spousal support. For example, if you're seeking alimony because a chronic illness prevents you from working, your medical history, hospitalizations, and surgeries will be relevant to your claim. Or if you've suffered injuries in a car accident, leaving you disabled and unable to work, your hospital and rehabilitation records may be relevant, but visits with a therapist for depression probably aren’t pertinent to your case. In this situation, a judge may limit what portions of your medical records can be subpoenaed or may allow you to redact certain information before providing the records to your spouse.

Medical History Can Be Relevant to Custody

A child’s best interests are paramount to any custody decision. Among the factors assessed in custody cases is each parent’s physical health and emotional stability. Thus, in contested divorce case involving children, you and your spouse’s medical records are likely relevant to a judge’s custody decision.

For example, if you suffer from a severe, untreated mental illness, your mental health records—including information about medications—are likely to be relevant to custody and parenting arrangements. Conversely, if your spouse had a history of domestic violence and you were treated for injuries from the violence, your medical records are relevant to establishing the abuse and determining whether your spouse should be entitled to unsupervised visits with the children.

Although your medical records are obtainable if they’re relevant to your divorce, a judge will balance each spouse’s need for privacy with the need for information in your case. In some instances, a judge will order that medical records be provided directly to the court, for the judge's exclusive review (not to the other spouse). Ultimately, courts recognize that each spouse’s personal information should be kept as private as possible.

Questions for Your Attorney

  • I have a medical disorder that doesn’t affect my ability to care for my kids. How can I keep this medical information private?
  • I have spent years attending therapy, and I thought any information I shared with my therapist was confidential. Can my spouse obtain my therapy records?
  • I have very well-managed bipolar disorder. I don’t want this information disclosed during my divorce. Should I provide limited medical records to prevent my spouse from subpoenaing my entire medical history?

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