Privacy and DivorceJul 25, 2019
Few people want strangers or acquaintances to know the details of their divorce, especially details relating to the demise of their marital relationship, sensitive financial matters, business matters or parenting. However, absent special circumstances, divorce hearings and most documents in a court’s divorce file are accessible to the general public. Both the New Hampshire Constitution and the United States Constitution guarantee the public a right of access to the courts. This right of access is intended to ensure a fair, predictable, unbiased and trustworthy justice system. Unfortunately, however, it can result in unwelcome intrusion since it also means that, except in a few limited circumstances, anyone may attend hearings and review court files.
If a matter is litigated, absent a protective order, pleadings and exhibits concerning sensitive personal and business matters may be accessible to competitors, business contacts, colleagues, employees, friends, family, and the general public. Conversely, in cases resolved through alternative dispute resolution (i.e. negotiation, mediation, collaborative law or arbitration), only the final settlement documents, generally devoid of allegations and harmful content, are available in the public file. This is one of many reasons why public figures and highly-visible individuals often choose an alternative dispute resolution process for divorce. In fact, as a general rule, most individuals would benefit from alternative dispute resolution, which is why courts generally require divorce litigants to participate in mediation and/or neutral case evaluation.
While there are ways to protect sensitive information from review by others during or after the divorce process (such as confidentiality agreements, protective orders, and requests to seal files) there are no guarantees at the outset that such means will be effective. Counsel can request a protective order, including an order to seal the divorce file or parts of the file and protect the file from public inspection. However, a court may decide to protect or seal all of the file, some of it or none of it. The determination is largely within the court’s discretion. Mere fame, prominence, wealth or notoriety alone will not suffice as a basis. In fact, even an agreement by all parties to seal a file is not, in and of itself, sufficient to seal a file.
A party seeking to seal records and pleadings must present a sufficiently compelling interest, meaning a special circumstance or other overriding consideration, and then explain why there is no reasonable alternative to non-disclosure. If the party seeking a protective order is able to meet this burden, then the court must employ the least restrictive means of limiting public access. Unfortunately, even if trial exhibits or other sensitive information is sealed, it is possible for a third party to meet the legal burden to unseal the documents. Not having the information as part of the court record in the first place, for example by achieving resolution through alternative dispute resolution (i.e. negotiation, mediation, collaborative law or arbitration), is the best way to maximize privacy.
If both parties agree that certain information should not be shared in the public domain, confidentiality agreements are often employed to memorialize the agreement and ensure that all participants understand, agree upon and adhere to the terms. Confidentiality agreements are often signed by the parties, attorneys and involved experts. Such agreements specifically detail what information cannot be released. Some agreements govern the means by which such information can be reviewed, shared within the litigation and maintained. Confidentiality agreements routinely contain provisions providing penalties in the event of a breach. This allows the parties some reassurance that all involved will adhere to the agreement.
For more information about private alternative dispute resolution options, see the blog post “Options for Resolving a Divorce” as well as the blog posts providing further detail on “Mediation of Divorce and Parenting” and “Collaborative Law as an Option to Resolve Divorce and Parenting Cases.”
About the Author: Margaret Kerouac