Special Divorce-Related Considerations for Highly Visible Individuals and Public FiguresOct 02, 2019
The general public is often fascinated by the private lives of public figures and highly-visible individuals. Like the rest of the population, public figures get divorced with some frequency. Unfortunately, because of the public’s interest, highly visible people and their families are often subjected to increased scrutiny during an already complicated and difficult time.
Some obvious examples of public figures include celebrities, professional athletes, television personalities and artists. Highly-visible individuals include political activists and commentators, owners of well-known or eponymous businesses like car dealerships, elected or appointed government officials, executives of well-known or public companies and others who enjoy widespread name recognition. For these individuals, the stress of divorce can be exacerbated by media attention, public intrusions into private matters, and negative publicity. Since public figures and their families are particularly vulnerable during the divorce process, discretion and capable guidance are crucial. Those who are highly visible should consider a few important points before proceeding into the unpleasant territory of divorce.
Courts are Not Private Forums. Both the New Hampshire Constitution and the United States Constitution guarantee the public a right of access to the courts. This means that, except in a few limited circumstances, any member of the public can attend hearings and review court files. Absent special circumstances, divorce hearings and most documents filed with the court are available to any member of the public. This right of access is intended to ensure a fair, predictable, unbiased and trustworthy justice system. Unfortunately, however, it can result in unwelcome intrusion, negative publicity, and scrutiny of divorcing public figures.
Few people, whether public figures or not, would like others to know the details of their divorce, especially details relating to the demise of their marital relationship, sensitive financial matters, business matters or parenting. Damaging allegations about personal and business matters may surface during the course of divorce litigation, which is one of the many reasons why most public figures resolve their divorces outside of court, as discussed in further detail below. If a matter is litigated, absent a protective order, documents concerning confidential personal and business matters may be accessible to competitors, business contacts, colleagues, employees, friends, family, and the general public.
Privacy Can Be Achieved by ‘Sealed’ Files, Protective Orders and Confidentiality Agreements. Confidentiality agreements, protective orders and requests to seal files are means to protect sensitive information from public review during the divorce process. 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. The court may decide to seal all of the file, some of it or none of it. The determination is entirely 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 seeking party is able to meet this burden, then the court must employ the least restrictive means of limiting public access.
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. It is not uncommon for confidentiality agreements to be signed by the parties, attorneys and involved experts. Such agreements very 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.
Alternative Dispute Resolution is the Best Option. The vast majority of public figures resolve their divorces through a private and confidential dispute resolution process, specifically negotiation, mediation, collaborative process or arbitration. Each process allows private and confidential resolution of disputes. If the parties are motivated and responsive, these processes can be much faster than litigation. When a case is resolved through alternative dispute resolution, only the most basic documents, devoid of allegations and harmful content, are available in the public file. As explained above, the parties can request that the court seal some or all of the documents. In cases generating significant public interest, it is not uncommon for the courts to receive such a request, particularly relating to parenting plans, as the safety a child should outweigh the public’s interest.
Typically the first communication between counsel in a case involving a public figure relates to the dispute resolution process. When the parties and attorneys agree upon mediation, arbitration or collaborative process at the outset, a divorce can be handled from start to finish outside of the court system. The public has no right of access to such a process. The proceedings are private and confidential. The personal and business information exchanged remains confidential.
These voluntary settlement processes accommodate the parties’ privacy concerns and are typically faster than the court system, in addition to several other benefits. Arbitration is the equivalent of hiring a private judge. It is private and functions much like a court proceeding, but affords rapid access and privacy. The drawback is that arbitration can be quite expensive and acrimonious, like litigation. In contrast, mediation and the collaborative process are cooperative methods. For more information about mediation and the collaborative process, see the blog post “Options for Resolving a Divorce,” which can be found here: https://orr-reno.com/options-for-resolving-a-divorce/ as well as the blog posts providing further detail on mediation (https://orr-reno.com/mediation-of-divorce-and-parenting-cases/) and the collaborative process: (https://orr-reno.com/collaborative-law-as-an-option-to-resolve-divorce-and-parenting-cases/).
Choose Excellent Counsel and Trust Counsel’s Advice. Particularly in matters involving highly-visible individuals, it is important to choose counsel early and well. Choosing counsel early can avoid many critical early missteps that could influence the outcome of a case. Choosing counsel well ensures competency, client confidence, a cooperative relationship and avoids the perils of switching counsel later in the case. It is important that counsel for both parties understand the important issues, including the involved businesses or interests, sources of income and unique concerns of the parties. Divorce counsel should be someone with a strong reputation, whom the client trusts, likes and with whom they are comfortable. The personality fit and working relationship are extremely important. During the case, it is likely that there will be peaks, valleys and discussions about very personal issues.
Sometimes Divorce is a Team Sport. It is not uncommon for the divorce of a public figure to require collaboration with several other professionals. Public figures often have a team of professionals (business counsel, wealth managers, financial controllers, accountants, personal assistants, agents, and sometimes public relations professionals) who are trusted, knowledgeable and critically important to them. In some cases, the professional team may know important facts better than the involved parties.
Such professionals are often important members of the team, but counsel must also consider preservation of the attorney-client privilege to protect the client on sensitive matters. The attorney-client privilege is inapplicable to communications where a third-party is present, so while there are many occasions on which such professionals should be called upon, they cannot be present for all meetings or all discussions. When sensitive issues are discussed, it is important for the attorneys to be alone with the client to preserve the attorney-client privilege. Failure to do so could result in opposing counsel asking the participants about what was said or shared during the discussion.
For parties with the assistance of a public relations team, that team will assist with any public messaging and press inquiries. It is rarely appropriate for the involved attorneys to respond to media inquiries. Note, however, that an attorney should not be completely removed from decisions about messaging. It is very important to consider the divorce-related ramifications of any public messaging on personal issues. If children are involved, public statements should also consider the potential impact on children, as divorce-related publicity can be a source of stress, anxiety and social concern for children.
Exercise Extreme Caution in Discussing the Divorce. Regardless of visibility, parties should avoid public discussions of their divorce, especially disparagement of those involved on social media. When saying or posting something in a public forum, it is important to think of how that information could be read (or misread) and any potential negative impact(s) on the client’s personal and business relationships. Such information can impact others as well, particularly children, friends, family members, colleagues, investors, employees and other stakeholders.
It is important for public figures to exercise heightened caution in divorce-related communications. Discussions of a pending divorce by a public figure should be limited to a small and highly trusted circle. All others who inquire, should be redirected (i.e. “that is not something I wish to discuss” or “no comment”). It is often best to memorize a bland, short statement that can be consistently repeated so that there is no variation in the explanation. In general, if there is less available information and minimal private information, the divorce will receive less attention. However, in many high-profile cases, information finds its way into the public realm through social media, industry or company gossip, overheard conversations, family or acquaintances with poor discretion or the like, so it is important to be selective about the few people who will receive greater detail and provide minimal and consistent information to others.
Since public figures and their families are particularly vulnerable during the divorce process, discretion and capable guidance are crucial. Consideration of the important points outlined above before proceeding into the unpleasant territory of divorce can minimize or avoid the increased stress of public scrutiny during an already complicated and difficult time. Taking steps to minimize exposure and public interest can make the transition through divorce a less painful for all involved.
(A version of this article published by New Hampshire Business Review can be seen here)
About the Author: Margaret Kerouac