Divorce involves some of the most deeply private and personal matters of an individual’s life. While the process of dissolving a marriage and a family can leave one feeling exposed, the public and permanent nature of the process literally leaves one exposed – to public view. Can a party protect against that form of disclosure?
The petition for dissolution of marriage that begins the divorce process contains very little personal information, and our courts now have a “Confidential Information Sheet” to complete required information that will not be for public view. However, financial disclosure forms (Statements of Property and Income and Expenses) remain public records, as do other motions relating to the process and the final judgment entered in the case.
As a divorce becomes more contested and heated, the parties may put private information into pleadings, ranging from allegations of extramarital affairs to allegations of domestic abuse to allegations about the neglect of the children. A party may seek a psychiatric examination alleging issues of fitness. Do all of these issues remain public?
Yes and no. A party has the option to file any pleading under seal with the court, but the court has wide discretion in whether to keep a filing out of public scrutiny. In paternity cases, the entire file remains sealed because of a longstanding belief that parentage issues should not be a matter of public concern due to the sensitive nature and the impact on the child. But the same concern exists in a divorce, and we do not have that automatic protection. Why? In general, all filings in court are public records and anyone can view the documents at the courthouse and now online. The open records doctrine flows from a fundamental belief that court proceedings should not be secret so that the public serves as a counterweight to any potential arbitrary behavior by a court. Also, the First Amendment protects a broader public “right to know” with regard to court records.
But that openness is not unlimited. Courts can and do close parts of proceedings where publicity would cause injury, from unnecessary embarrassment to financial harm to safety of children.
If an individual has strong concerns about keeping matters confidential in filings, that individual should discuss that with his or her attorney at the outset and seek to have as much material filed under seal as possible.
Beyond the filing of documents, hearings are generally open to the public and matters disclosed could also be embarrassing or otherwise violate privacy. The court has some discretion to close a hearing, but that discretion is narrower than for filings. Because of that public nature of a hearing, parties particularly concerned with privacy are encouraged to reach an out-of-court settlement. Indeed, as this recent article in Forbes indicates, some states, because of their open access policies, encourage settlements, while other states, more sensitive to privacy, keep more records confidential and even allow a private hearing before a judge or mediator.
We can see strong arguments in favor of more confidential proceedings, particularly in this time where the Internet allows such easy access to court filings. The court system will continue to wrestle with this issue, but at the moment the tilt in favor of public access in Missouri remains.
If you have questions about privacy in divorce, contact us – we can help.