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"Privacy" Goes Out The Window In A Divorce

Divorce litigation, particularly when children are involved, can be one of the most intrusive experiences of an individual's life. Traditional rights of privacy are often trampled by a legal system that seems hell bent on allowing each litigating spouse the ability to delve into virtually every aspect of the other's life, regardless of how benign it ultimately proves to be. It is as though the courts are warning the divorce litigants, "If you want to fight, be prepared to open your soul to judicial scrutiny."

Allow me to provide some specific instances in divorce litigation where time-honored expectations of privacy are cast aside for the better good:

1. Medical Records . . . One's medical records, whether physical or mental, are generally considered sacrosanct and confidential. Indeed, a statute in Virginia expressly makes such records subject to a physician-patient privilege. Federal HIPAA laws bend over backwards to insure that such medical records are released only with the written approval of the patient.

However, divorce statutes in Virginia state that each spouse's physical and mental health is relevant for the Judge to consider when awarding spousal support, or upon the issue of custody of children. These statutes have been held to trump any right of privacy, and all such medical records become fair game for warring spouses.

2. Financial Records . . . Even years after a divorce, once spouse's bank records, income tax returns, investment portfolio and the like, are all susceptible of being obtained by a former spouse if litigation arises over modifying child or spousal support. It will do absolutely no good to complain that forcing you to produce years' worth of financial information unfairly infringes on your right to conduct your affairs in private. The need for full disclosure in divorce litigation remains paramount.

3. Employment Records . . . Frequently, in divorce litigation, an issue arises over one spouse's job performance or earning potential. In such a case, that spouse can expect his or her personal file and other employment-related records to be subpoenaed and examined by the other spouse. Even minor information from years ago can assume unexpected significance when issues of spousal support become contested.

Sometimes litigating a divorce is the only way to reach resolution. Just understand that, when papers are filed with a court, virtually all concepts of privacy are forsaken.

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Duff Kronfeld & Marquardt P.C.
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Fairfax, VA 22030

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