HOW TO AVOID A KISS AND TELL DIVORCE. THE CASE FOR SEALING DIVORCE COURT RECORDS.

family law attorney Marlene M. Browne.
You may know of the notorious saga of grocery store billionaire, Yucaipa Cos. founder and investor, political contributor, and well-known friend of Bill and friend of Hillary, Ron Burkle, and his herculean efforts to keep the intimate details of his messy divorce out of the public’s prying eyes.
In case you missed it, Burkle and his attorneys attempted to seal all the records in his divorce case to preclude public access to his personal information (his financial information, his son’s whereabouts and the contents of a disputed postmarital agreement). When the California state court denied his motion in full, an urgent law passed in California–no kidding, 2024.6–making the sealing of divorce documents mandatory upon the request of any party, if they contained financial information.
In 2004, Burkle and his counsel relied upon this new law when they asked the court, again, to seal most of the records in his divorce case. In response, not only did his wife, Janet, and her attorneys oppose this motion, but so did lawyers for the press, namely, The Associated Press, the Los Angeles Times, and the California Newspaper Publishers Association. Together, they filed papers opposing the new law as unconstitutional, and they won.
Still, Burkle filed a motion to seal his records. (See it by logging on here.) Though many of his records were ultimately released, he prevailed in the divorce case.
The public’s right to know what happens in the courthouses of America is older than, well, America. Like so many of our other legal traditions, open access to the public courts comes to us from England. What’s more, the U.S. Supreme Court has held that our own First Amendment guarantees public access to the federal courts, “to ensure that court proceedings are conducted fairly and impartially and that the judicial process is open and accountable.? This right extends to state courts in both criminal and civil matters, including domestic relations cases.
But while the public generally has a right to attend public trials and review all documents or pleadings upon which a court relies in making a decision, those rights can be limited when a litigant’s right to privacy exceeds the public’s right to know. In some states this balancing test–to seal or not to seal a civil file–is performed according to state law (statute, code or constitution), while others rely upon common law (decisional law contained in appellate opinions). Still others are guided by court rules that govern the administration of justice in the state.
In 2004, attorneys for the Capital Group Cos. sought to seal certain documents in the California divorce of CGC executive Timothy Armour. CGC claimed to have a legitimate interest in keeping its compensation and stock awards out of the public domain, even if Armour and his wife, Nina Ritter, needed the California court system to sort out their marital dispute. The trial court agreed with CGC and sealed some of the records.
Most states allow for a balancing test of some kind when faced with a legitimate request to seal a file. Just wanting to avoid the prurient interest of the public or the paparazzi is not enough. For instance, as of Jan. 1, 2007, two new California court rules (2.550 and 2.551) contain the judicial criteria and procedure for sealing a court record.
Now, court records (i.e., materials used during a trial or submitted to the court as a basis for its decision in a case) are presumed to be open to the public unless those records must remain confidential under existing law (adoption records, sexual crime victim identities and the like). Or if a person can prove that his need for privacy outweighs the public’s right to see justice in action. Plus, he must show that the proposed sealing is narrowly tailored and that no less restrictive means exist to achieve the overriding interest.
Meanwhile, in late 2005, in The Associated Press v. the State of New Hampshire, the justices held that sealing records in a divorce case requires an analysis of the two-part “experience and logic test? annunciated by the U.S. Supreme Court in 1986. First, the court will determine “whether the place and process have historically been open to the press and general public,? and if so, “whether public access plays a significant positive role in the functioning of the particular process in question.? If both answers are “yes,? your chances for sealing a file are not good.
When divorce is imminent or ongoing, most people today seek advice on how to protect their personal and financial interests. While in most cases that means seeing an attorney to learn what you can expect to get or give under the law and facts of a particular case, in many instances the first trip to the attorney includes a request to keep the proceedings private, if possible. In the old days, there really was a two-track system in some states, most notably Connecticut, where the rich or powerful could keep their public cases secret. But no more. If it looks like a private settlement is impossible and you are headed to court, beware.
In the 21st century, with more than half of all states making digital copies of case files and storing them electronically for easy court access, do you have be concerned with identity theft from people who log on to your court’s Web site from miles away? Not so much. Many states have implemented the Conference of Chief Justices/Conference of State Court Administrators’ Guidelines for Public Access to Court Records: A National Project to Assist State Courts, which outline how courts can toe the line between personal access and privacy protection in the digital age.
For instance, many courts allow litigants or their attorneys to use only the last four digits of Social Security numbers, financial account numbers, driver’s license numbers and the like in filed court records. (The real numbers are kept safe and offline.) Children can be identified by initials only, and instead of providing full birth dates, only years of birth are required.
Moreover, some states have gone further, adopting a two-tier system of access. The one available to the public via the Internet is bare bones, containing only court-generated documents like calendars, lists of filings and dispositions. The other, the real court file, containing all the records generated by parties and others–which is what concerned Burkle and Armour’s employer–is only accessible over the Internet by account, with a log-in password that creates an electronic trail to curb abuse. Others have to go to the courthouse to have a look-see. (This probably how the the Smoking Gun obtained and posted Jason Kidd’s divorce complaint so quickly.)
Still, it is possible to opt out of this privacy vs. public access problem by settling your marital matter privately via mediation, arbitration or any other complementary dispute-resolution method that doesn’t rely upon the courts for adjudication. By settling outside the court system, only your actual divorce petition and decree (appropriately edited, or “redacted,? from bearing any personal information) will be on file, if not sealed. If Jack Welch settled with Jane, she never would have had to file the financial declaration that alerted the world to the hidden universe of retired-executive perquisites.
If you are able to settle your divorce outside the court system, remember to request (and, naturally, pay for) tactful silence from your former spouse to avoid the possibility of kiss and tell publications in the future. (If you have any doubt about the effectiveness of these “no tell? clauses, just ask JLo or the Donald Trump about them.) Also, insert a mandatory arbitration clause into any privately settled agreement, ensuring that any enforcement or breach of contract suit ends up in a private forum, not the public forum you initially avoided by privately resolving your matter in the first instance.
Finally, even if you manage to seal your divorce file, a subsequent application to release those records could cause you trouble. Remember Jack Ryan? He was the Illinois Republican who wanted to run for U.S. senator, until the records of a post-divorce custody battle were unsealed.
So, if possible, play nice and settle, secretly.
For more information about marriage, divorce and family law, read Boomer’s Guide to Divorce and The Divorce Process: Empowerment Through Knowledge by family law attorney Marlene M. Browne.

Paul McCartney and Heather Mills, Steven Spielberg and Amy Irving, Mick Jagger and Jerry Hall. Click here for a rundown of the most expensive celebrity divorces.
 

 

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