Divorce proceedings often require the filing of documents with the court that include intimate (and sometimes sordid) details of a client’s personal life. Pursuant to United States Supreme Court case law, transcripts of court proceedings, pleadings, and court orders and rulings all become a part of the public record. This effectively means that the contents of a case file are open for the media and public’s review.
The constitutional and common law right to access court filings can be limited in certain specific circumstances. While the method that is best for each individual case should be explored directly with your attorney, below are some options to preserve your personal information and maintain your privacy:
Motions to Seal. A party may file a Motion to Seal the court file; however, depending on the applicable state law, relief pursuant to a Motion to Seal may be granted in extremely limited circumstances and subject to certain restrictions. Generally, a party must demonstrate that a compelling interest in favor of sealing exists, outweighing the public’s right to access the record. By way of example, the Illinois Supreme Court has previously held that avoiding embarrassment and potential damage to reputation does not justify sealing the court file.
In rare circumstances, the court may elect to seal the file on its own volition. Judges are generally urged to exercise their power to do so sparingly and with deference to the public interest. Judges are also restricted from accepting the parties’ agreement to seal the case file without giving valid consideration to the public interest in maintaining open court records. It is important to note that even if a case file is successfully sealed, it may be unsealed at a later date upon motion or on the judge’s own accord.
Protective Order. Agreed protective orders are a commonly-used method which restricts the disclosure of information subject to the terms of the order. Protective orders commonly restrict the parties, their attorneys, and relevant third-parties from disclosing, disseminating or otherwise distributing information obtained through litigation. A protective order will not seal the entirety of the case file, but will create parameters within which any personal information may be shared.
Alternative Dispute Resolution. Methods of dispute resolution such as mediation and arbitration may be used as an alternative to court proceedings, and may provide additional privacy protection. Mediation is a non-binding confidential method of dispute resolution where a neutral third party assists the parties in reaching an agreement. As a method of alternative dispute resolution, mediation is not bound by the rules and requirements safeguarding the public interest, as is the case with court proceedings.
Arbitration is a method of dispute resolution which leads to a binding decision. For this reason, arbitration is not typically used in dissolution proceedings with the same frequency as mediation is. However, when the issue in contention is narrow in scope, arbitration may be a potential method of reaching a resolution. As with mediation, arbitration proceedings remain private and do not become a part of the public record.
Incorporation by Reference. To “incorporate by reference” is a legal term of art that allows for referring to a document in pleadings by name only, rather than attaching it. When a document is attached to an order or pleading, it enters the court file; however, when a document is incorporated by reference, it is included in the “record” but is not made part of the file. This is particularly helpful when entering a Marital Settlement Agreement, which usually contains a large amount of personal information and identifiers, including detailed information about the parties’ assets and finances. By incorporating the Marital Settlement Agreement by reference only, the personal information contained within it is effectively shielded from public access.