Bivek, Brubaker & Prescott - Marietta family law and divorce attorneys

Mental Health & Medical Privacy

When you’re going through a divorce, it’s important to understand the privacy protections you may or may not legally have with your psychiatrist, psychologist, and other medical professionals.

In contested divorces (where you and your spouse can’t agree on one or more of the issues in your divorce), people often worry about the confidentiality of their psychiatric and other mental health records and how they may affect their divorce. This is a real concern, as both spouses are collecting evidence and trying to use it to their advantage for alimony, child custody, property division, and other important issues.

What Is Protected?

Under Georgia law, you benefit from several types of patient privilege, including:

Almost anything that starts as communication between you and your psychiatrist is off limits from anyone who requests it, including your current or former spouse. To create the psychiatrist-patient relationship, you must have at least considered, if not undergone treatment for your mental health with this particular doctor.

Once you establish the psychiatrist-patient relationship, be careful not to waive your own right to privacy. Patients sometimes accidentally waive their rights. For example, patients have called their own psychiatrists to testify as witnesses on their mental condition, which indirectly waives their right to privacy.

Even if someone accidentally provides privileged information during the legal discovery process, Georgia courts usually will not recognize this information as evidence and will not consider it a waiver of privacy on your part.

What Is Not Protected?

The privacy protections above do not extend to other areas, so be careful not to assume anything without first checking with an experienced Georgia divorce attorney. For example, these areas are not protected:

It is important to know what is protected information and what is not. This way, you – and your legal advocate – can make the right objections at the right time.

First, you should be careful what you say and to whom if you are undergoing treatment for mental health. Be sure to limit any communications with staff who are not agents of the attending psychiatrist.

Second, you do not have the same privacy protections with your regular medical professionals that you do with your psychiatrist or other mental health providers. Georgia law does allow considerable rights to medical privacy, but your personal medical records could be disclosed without your consent – but only by a court order or other applicable Georgia law.


As you can see, the details about medical privacy during a divorce can be confusing and complex. The Marietta divorce lawyers at Bivek Brubaker & Prescott understand these and other complexities of a divorce. Contact us at 404-793-6530 to schedule a consultation today.

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