People come to see me about divorce and sometimes wonder if they need a divorce or if they can still work on their marriage. I always advise people “Try to work it out. There’s always hope.”
In my opinion, the only time divorce is truly inevitable is when one party has a personality disorder or an addiction.
When a party does have a personality disorder or an addiction, that issue often becomes central to the entire divorce case. In the hopes of treating the issues of mental health and addition humanely and effectively, Illinois law does not allow for the full inquiry and disclosure into mental health and addiction treatment…even during a divorce.
“All records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.” 740 ILCS 110/3
Records of therapy means records of ANYTHING
“”Record” means any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.” 740 ILCS 110/2
And the therapeutic relationship can be with almost ANYONE.
“”Therapist” means a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services or any other person not prohibited by law from providing such services or from holding himself out as a therapist if the recipient reasonably believes that such person is permitted to do so. Therapist includes any successor of the therapist.” 740 ILCS 110/2
Therapists and therapeutic staff can not even disclose if a person has been in communication with them or their facility. “Communication includes information which indicates that a person is a recipient [of therapeutic care]” 740 ILCS 110/2
“All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.” Ill. Sup. Ct. R. 201
The United States’ Supreme Court further enshrined this counselor-patient privilege as being fundamental. “The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.” Jaffee, 518 U.S. at 11, 116 S.Ct. at 1929, 135 L.Ed.2d at 345-46.
Waiver of Privilege Between A Client And A Therapist
The privilege of preserving communications between a therapist and their client is sacrosanct…unless the client allows for that waiver…at any time.
“[T]he privilege between therapist and patient, like the privilege between attorney and client and husband and wife, which prevents compulsory disclosure of confidential communications, may be effectively waived by the holder of the privilege. If there is a disclosure of confidential information by the individual for whose benefit the privilege exists, or if he permits such a disclosure, the privilege is waived and cannot be reasserted.” Novak v. Rathnam, 478 NE 2d 1334 – Ill: Supreme Court 1985
This is important because a divorce litigant cannot use their mental condition as both a sword and a shield. A parent cannot say, “I was absent from my child’s life because I was going through a lot” without also disclosing what they were going through.
A court can find that “the interests of fundamental fairness and substantial justice [can] outweigh the protections afforded the therapist-recipient relationship where plaintiff seeks to utilize those protections as a sword rather than a shield” DC v. SA, 687 NE 2d 1032 – Ill: Supreme Court 1997
Even if a recipient of therapy brings their health or treatment to issue, an Illinois divorce court has to take a very close look at the matter behind in camera (behind closed doors) to be sure the important privilege has been waived in a manner that warrants further disclosure.
“If the recipient has introduced his mental condition, the court must conduct an in camera examination of the evidence to determine if it is, inter alia, relevant, probative, and not unduly prejudicial.” Reda v. Advocate Health Care, 765 NE 2d 1002 – Ill: Supreme Court 2002
Court Ordered Counseling In An Illinois Divorce
Despite Illinois law’s strong bias of secrecy in regards to all types of counseling, an Illinois divorce court can order counseling for either party and/or the children (but only if there are children).
“The court may order individual counseling for the child, family counseling for one or more of the parties and the child, or parental education for one or more of the parties, if it finds one or more of the following:
(1) both parents or all parties agree to the order;
(2) the child’s physical health is endangered or that the child’s emotional development is impaired;
(3) abuse of allocated parenting time under Section 607.5 has occurred; or
(4) one or both of the parties have violated the allocation judgment with regard to conduct affecting or in the presence of the child.” 750 ILCS 5/607.6(a)
While the existence of the counseling will certainly be known if court ordered, the contents of the communication in the counseling remain private under 740 ILCS 110, the Mental Health and Developmental Disabilities Confidentiality Act along with other relevant federal laws.
“Counseling ordered under this Section is subject to the Mental Health and Developmental Disabilities Confidentiality Act and the federal Health Insurance Portability and Accountability Act of 1996.” 750 ILCS 5/607.6(d)
If a Guardian Ad Litem or Child Representative is appointed in an Illinois divorce case, a big loophole becomes present as both of those roles have enormous investigative powers…which could include discussing and reviewing therapeutic communications.
“Every child representative, attorney for a minor child and guardian ad litem shall have the right to interview his or her client(s) without any limitation or impediment. Upon appointment of a child representative, attorney for the child or guardian ad litem, the trial court shall enter an order to allow access to the child and all relevant documents.” Ill. Sup. Ct. R. 907
When children are involved, Illinois divorce judges want to hear anything they possibly can to make the best decision for the children.
“[I]n determining what is in the best interests of a child, the circuit court should hear any and all relevant evidence.” In re Marriage of Collingbourne, 204 Ill. 2d 498, 522 (Ill. 2003)
This principle of full disclosure for the sake of the children is in direct opposition to the therapist-client privilege. Guardian Ad Litems and Child Representatives usually get around the issue by strongly insisting that parents sign waivers to allow them to speak with the parents’ therapists otherwise “they might weigh the other parent’s testimony more strongly.” Parents always acquiesce…and it usually doesn’t matter.
If you’re trying to get access to your spouse’s mental health records for evidence in a final hearing or trial for your Illinois divorce, you are going to have a hard time unless there’s a Guardian Ad Litem or a Child Representative doing that for you.
Likewise, if you’re trying to protect your private health records in an Illinois divorce, you’ll have an iron-clad excuse…until a GAL or Child Rep insists on disclosure.