Do I have to Provide My Medical Records to My Ex in a Divorce

During the pretrial discovery phase of a divorce and in child custody matters it is not uncommon for the opposing party to request your medical records. Whether an outside party is entitled to see your medical records is a matter that can be litigated, but generally speaking, when the records are relevant to the issues at hand, the opposing party may be justified in obtaining them.

Your private health records can not be acquired by the other party for the purpose of embarrassment or harassment, but rather can be obtained to support certain legal arguments surrounding issues like a party’s ability to work or whether a medical condition exists that affects a parent’s ability to care for their children. Due to the private nature of health information, there are proper channels for a party’s medical records to be shared. These might include providing the records yourself, signing a release for your health care provider to deliver the records on your behalf, or a judge can order the provider to release the information if you do not consent. Absent consent from you or an order of the court, your healthcare provider should not provide any information to the opposing party.

Justification for release of records might include proof that no medical condition preventing a party from working and earning a living exists in a claim for child or spousal support, or whether a medical condition affects parenting abilities in a suit for custody. If you do not consent to the release of your records, an objection to the request can be made forcing the requesting party to prove that the information sought is relevant and the need to obtain it outweighs another’s right to medical privacy.

If your medical records are relevant, your attorney can discuss your options about making a request to limit the scope of the information sought and ensuring that the information produced is limited to only the relevant issues. If the records are beneficial to you and support your position or show that you have sought and completed treatment for past issues, then it may be in your best interest to simply comply and provide the documents. Depending on the nature of the documents sought you may want to have additional safeguards in place, such as a protective order.

A protective order offers certain protections by prohibiting the other party from disclosing the details of your records to any third parties and provides that any medical record used in trial be submitted to the court under seal rather than the public record. Judges can order that your records be provided to the court under seal for an in-camera (for the judge’s viewing only) review. This allows the Judge to determine what records are relevant and how they should be released.

During a divorce or custody matter it may seem as if any information request you receive from the opposing party is intrusive, especially requests for highly sensitive information. While the opposing party is not allowed to go on a fishing expedition, there are times when certain requested information can be very helpful to your case. Your cooperation in providing your attorney with documents and information that may be requested through the course of your divorce will permit your attorney to properly prepare your case for settlement negotiations, mediation conferences, and trial. Not doing so could have a direct bearing on your case and can prevent your attorney from achieving the best outcome on your behalf.