Why Is Divorce So Public?

By January 30, 2013Divorce

On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Thursday, January 31, 2013

Divorce often involves the airing of “dirty laundry,” private facets of a couple’s life they would like to remain private. Finances, issues with children, marital misconduct – even if the information may not be embarrassing, it still flows from a space we like to believe free from the public eye.

Many people do not realize how much information in a divorce proceeding may become public. In general, every divorce filing is a public court record, and the U.S. Supreme Court has held that the First Amendment gives the public a “right to know” about court proceedings, with the theory that public scrutiny serves as a check on improper actions by a judge or an attorney. The “right to know,” like other constitutional rights, however, is not absolute, and some records or proceedings may be kept confidential, or closed, if the trial court deems it appropriate.

With electronic filings and online access to court records, the ability to learn intimate details about your neighbor through a divorce becomes much easier. Federal courts currently post every document filed in a case (not otherwise sealed), and states are following that process. Indeed, in Missouri, some counties already use electronic filing, though these documents are not currently available to the general public online.

A curious reporter or nosy neighbor could go to the courthouse and find any divorce file and have the opportunity to review it, unless the court seals some of the records. Notably, all paternity actions are automatically protected from public view, in part because they involve children, in part because of an archaic stigma associated with illegitimacy. Within the typical divorce file the reporter or neighbor would see the pleadings and motions filed by the parties, which may contain accusations of misconduct, ranging from adultery to physical abuse. The reporter or neighbor would also see the statements of income and expenses and property filed by the parties, which list often detailed information about an individual’s wealth.

Should these items remain open for public view? Why should a divorce, so personal and painful, have to also become a public spectacle? These are important questions, particularly in the age of the Internet. First Amendment concerns seem perhaps most important in the criminal context (where we have a separate right to public trials) and in large civil suits, but less so in family matters. Judges do have more discretion to close proceedings to protect children and general privacy concerns.

Parties who divorce do have ways to keep much of the details private. The St. Louis family law attorneys at The Marks Law Firm, L.L.C. have lots of experience in helping clients proceed in the most discreet manner possible. To learn more, just contact us. We can help.