Be Careful What You Say!

Privileged Communications -

Imagine for a moment that you have been keeping a diary where you record your innermost thoughts, dreams, fears, sins, and misdeeds. You are now involved in a divorce or custody case. Your spouse has managed to put his or her hands on that diary and is going to use it against you. This is beyond frightening, is it not?

Over the course of many years all of us have come to the belief that certain conversations or disclosures are confidential in nature and cannot be exposed. For example, what we tell our attorney is protected by the attorney-client privilege. Similarly, what we tell our doctor, therapist or mental health professional is also privileged. Finally, the secrets we share with our spouses can, under certain circumstances, also be deemed confidential.

The reality is that all of these privileges have exceptions and limitations which can be exploited by an angry and ruthless spouse in the context of a divorce case or a custody matter.

Let’s start with the privileged communications between a mental health professional and a patient. Almost all of these privileges are found within the statutory laws of the individual states of this country. Thus, it is important to examine these individual statutory privileges and to consult with attorneys in your state.

For example, in New York, the mental health privilege generally protects disclosures and conversations between patients and a specific class of professionals - psychiatrists, psychologists and licensed social workers. At this time it is unclear whether “divorce coaches” or “co-parenting coaches” are included within this umbrella, unless they otherwise qualify under one of the other mental health designations.

However, even assuming the existence of a qualified professional relationship (i.e. “therapist”- “patient”), this privilege is deemed waived whenever the patient “puts into controversy” their mental or physical health – raises this issue in the context of a court case.

The clearest example of this implied waiver is a case involving custody or visitation. In such cases the parents in the battle are deemed to have put their mental and physical health in controversy. Thus, the treatment notes and records of their doctors or designated mental health professionals, as well as any conversations between them, are open for inspection and disclosure.

In my divorce practice, whenever I met with a client involved in a potential custody battle and found out that they were in therapy I had to advise them that they needed to be careful what they told their treating doctor or therapist since their conversations were not necessarily confidential. Obviously, such an admonition runs counter to the essential purpose of therapy. Unfortunately, this is an area where the law and medicine are at odds with each other.

Alternatively, one of the most commonly recognized and well established privileges is the attorney-client privilege. Yet, because of certain limitations on the privilege, there are times that the client has to be careful what they tell their divorce attorney.

In New York, divorce attorneys are required to certify as accurate the statements of their clients which are filed with the court - including financial statements of net worth and income. Thus, if a client reveals to his or her divorce lawyer that the previously filed tax returns do not accurately reflect the income of the parties or that there are hidden assets which the other spouse is unaware of (think Cayman Islands), the attorney cannot certify the client’s financial statements, unless the total income and all assets are revealed.

Said differently, attorneys may not reveal the confidential information imparted by the client but the lack of attorney certification on the client’s filing is a huge red flag to the judge that the statement is not accurate.

Also problematic for the attorney and the client are instances when the client has conducted illegal surveillance on his or her spouse and/or provided documents, tape recordings or other improperly gathered evidence to their attorney Here, the attorney is ethically forbidden from using such illegal evidence or even certifying that the client is innocent of such criminal activity.

Finally, we turn to the so-called husband-wife privilege. The privilege applies only to a confidential communications (oral, written or recorded) between spouses, which is induced by the marital relationship and made during the marriage. Generally speaking it is limited to those communications which a person makes to his or her spouse which would not have been made but for the marital relationship.

For example, when the husband discloses to his wife that he has previously filed false tax returns under-reporting their income or has stolen money from his employer in order to explain how they have managed to pay their bills, such disclosures are protected.

However, conversations between spouses about committing a future crime together are not privileged. Moreover, threats of violence or episodes of domestic abuse are not privileged since they are not made in reliance of the marital relationship and indeed are contrary to the relationship. Given the number of exceptions and nuances to the rule, advice from an attorney who has full knowledge of the relevant facts is the only prudent way to assess this issue.

In summary, parties embarking upon a divorce or custody case need to carefully navigate the area of “confidential communications” when dealing with doctors, mental health professionals, attorneys and even their spouses. Understanding the limits of confidentiality or privilege will at least provide protection against unintended disclosures.

Unexpected Discoveries

Some people find out that the relationship is over directly from the lips of their spouses or significant others. Others find out in unusual and unexpected ways.

A wife found out about her husband’s cheating ways by reading about it in the newspaper. The unidentified wife was perusing the “birth announcements” section of the newspaper when she came across a posting that her husband, who had an unusual name, had just had a baby boy with another woman.

Her shock was made even worse when she discovered that the husband and this woman previously had another child together one and one half years earlier. Upon making the discovery the wife put all of the husband’s clothes in garbage bags and dropped them off at the home of his girlfriend.

In another mega-divorce case that is just getting started, Jenny Paulson found out that her billionaire husband of twenty-one years, John Paulson, had filed for divorce by reading about it in the gossip column of the New York Post newspaper. According to sources close to Jenny “she never saw it coming.” This shocking blow was made even worse when a follow up article in the Post appeared the very next day, complete with photos and a detailed bio of John’s new love interest, a 33 year old fitness guru who is half of John’s age. The timing of the back to back articles and the content of the photos (taken months ago) made it clear that that John and his latest flame had been seeing each other for “quite a while”.

Sometimes, you find out about your husband’s cheating ways simply by answering your iPhone. In a New York divorce case, as detailed in the divorce court’s opinion, the unfaithful husband was having sex with his latest paramour when his telephone “accidentally dialed” the wife’s telephone number. His wife heard the whole lurid, passionate episode in “real time”. Of course, unexplained by the parties was how a “butt dial” could have occurred, given the circumstances under which the call was made.

Based upon my many years representing clients in divorce cases I have reached the conclusion that most couples in a divorce case come from one of two perspectives. The one initiating the divorce says it has been “coming for years.” The spouse receiving the “divorce greeting,” says it came “out of nowhere.” What is certain is that the spouse who feels angry and blind-sided by the divorce usually takes a longer and more difficult road to the resolution of the case.

Remarriage - The Triumph of Hope Over Experience

The nationwide divorce rate used to be around 50% of all marriages. Given the current pandemic, the divorce rate has begun spiking even higher. Whatever the divorce rate is for first marriages it is even higher for second marriages. Approximately, 60% of second marriages end in divorce. Moreover, approximately 73% of third marriages end in divorce.

The final statistic is reserved for those couples who marry and divorce the same person multiple times. The divorce rate for such “do overs” is off the charts. I actually had one of these vitriolic cases and it went on for over ten years.

Given these statistics it is amazing that people nevertheless continue to dip their toes into the sea of matrimony – multiple times. As a close friend of mine once observed; “Remarriage is the triumph of hope over experience. However, remarriage to the same person is the triumph of delusion over reason.”

As if to prove the latter point, a couple who had been married for over 9 ½ years divorced after a one year period of separation. The wife in the relationship was the one who wanted out but the husband was not so sure.

During their separation both spouses dated other people, a circumstance which made their divorce even more difficult and acrimonious. Collectively, the couple spent approximately $100,000 on their case. They reconciled after the final divorce decree was signed and remarried thereafter. The couple is now in the process of paying off their divorce debt. The wife observed on Tik Tok “our happy ever after is paying off a divorce we never got.”

The greater the number of previously unsuccessful marriages, the greater the odds are of a failed future marriage. Take the case of the actress Pamela Anderson who has been married six times to five different men. Along the way she divorced two rock singers (Tommy Lee and Kid Rock), a music producer (Rick Salomon whom she married, divorced, remarried and divorced again), and a film producer (Jon Peters who lasted all of 12 days).

Recently, Pamela commenced her sixth divorce case, the latest in a Canadian court, against her current husband Dan Hayhurst, a 54 year old body-guard and contractor who had been living with her in Vancouver. According to a source close to Anderson, Pamela and Dan were married one year ago following a “pandemic whirlwind” romance that petered out.

Apparently their 24/7 relationship proved to be too much, Again, sources close to Anderson say that Hayhurst was “unkind, unsupportive” and “a d-k” (a divorce industry term that encompasses various forms of misbehavior). During the pandemic they got to know each other better and Anderson came to the conclusion that he was not the one for her. Seventh time's a charm?

Finally, multiple marriages are not confined to hopeless romantics or the naive. I once met a fellow divorce attorney who had been married and divorced four times. As he recounted his failed marriages he revealed that the details of each marriage were somewhat hazy. By way of explanation he said “You see all of my ex-wives have the same first name - Plaintiff.”