This is a hot topic and one that is usually hotly contested. Medical and therapy records contain private, sensitive and potentially embarrassing information that you probably do not want to share with your spouse, his lawyer, his lawyer’s staff, the judge, etc. Attorneys usually want to obtain the other spouse’s medical records for one of two reasons: (1) to prove that they have a mental issue/illness which impacts their ability to care for the children; (2) in the hopes that something in the records can be used to prove adultery. It is very common to issue a subpoena to the other spouse’s doctor/therapist, and for the "patient" spouse to respond by filing a motion to quash the subpoena.
Like many issues in divorce law, whether or not a judge will allow the subpoena is difficult to predict. Quite honestly, it depends upon the particular judge. But most judges are protective of the patient and require a fairly high level of proof that there is a need for the records and that the other spouse is not simply on a fishing expedition. For example, if you can allege really strange behavior on your spouse’s part, you are more likely to get mental health records from a therapist than if you simply allege that your spouse suffers from depression. Your chances of obtaining the records are higher if custody of children is at issue in your divorce case. While most attorneys correctly argue that a parent’s mental and physical condition is always at issue in every custody case, most judges require a further showing that the medical/therapy records are relevant in the particular case.
The relevant statute is Virginia Code 8.01-399 which deals with the "physician/patient privilege." Here is a link to 8.01-399: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+8.01-399.
Good stuff as per usual, thanks. I do hope this kind of thing gets more exposure.
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