Question: My husband and I are involved in divorce litigation that we expect to last for a long time and to cost a lot of money. He has approached me about reconciling and wants me to go to counseling with him. I am very skeptical because I don’t trust him, but, at the same time, for the sake of our children, would like the marriage to work. We are both concerned that if we go to counseling and it does not work, everything we tell the therapist will wind up in court. Is there any way to avoid this?

Answer: In most states, relationships with mental health professionals is confidential, not privileged, and is subject to disclosure by court order; however, we believe that if you, your husband, and the counselor agree to make a relationship privileged and inviolate, then your agreement may assure the protection you desire. The following sample agreement may do the trick; however you and your husband should clear it with your lawyers, the counselor, and the court:

1. Husband and Wife are genuinely interested in a counseling relationship to attempt to resolve lingering emotional issues that may lead to reconciliation.

2. To do this, Husband and Wife each recognize that honesty is an absolute necessity. Husband and Wife also recognize that the relationship between each of them and a counselor is not privileged as their relationship with their lawyers and ministers, but is confidential. A confidential relationship means that the records of Husband and Wife may be subject to subpoena and discovery and court proceedings.

3. Because Husband and Wife want counseling to be totally private for all purposes, they agree as follows:

A. The relationship between Husband, Wife, and Counselor, and all records and communications relating thereto, are considered to be private, privileged, and not available to court order, subpoena, discovery motion, or other process.



B. All aspects of the counseling relationship shall be kept inviolate by Husband, Wife, and Counselor with none of these parties to discuss, disseminate, or otherwise disclose any aspect of the counseling relationship.

4. If Husband or Wife, or their attorneys or agents or anyone on their behalf attempts to secure these records for any purpose, then the party who breaches this agreement shall be responsible to the other party and to the Counselor in an amount less than $10,000 per counseling session and for all attorney's fees and expenses incurred in the defense of this agreement.

5. If Counselor discloses or disseminates any fact or circumstance of the counseling relationship, then the Counselor shall be responsible to Husband and Wife in an amount not less than $10,000 for each counseling session in addition to all attorney’s fees and expenses incurred in the defense of this agreement.

6. Husband, Wife, and Counselor agree that this agreement shall be an absolute defense to any claim by any party relating to this agreement. Should any third person attack this agreement, then Husband, Wife, and Counselor shall jointly defend the agreement against any such attack.