Private Lives, Public Records—How to keep your divorce as private as possible

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In our digital era, we’re so accustomed to being privy to people’s private business—from what they ate for breakfast to their proverbial dirty laundry—we hardly give it a second thought. Private lives play out in public across every platform and channel. Our world is saturated with media, and that media is inundated with intimate dramas featuring the rich and famous or the merely “influential.” It seems that, without even trying, we know we know more tawdry (sometimes disturbing and damaging) details about the breakdown of certain celebrity marriages than we ever wanted to know: movie stars, pop stars, sports figures, fashion icons, and famous personalities.

And yet, in going through their own painful, messy marital splits, many “regular” couples are caught off guard by the fact that, under California law, their divorce files will become part of the public record.

The Judicial Council of California makes “administrative records”—for example, documents about birth, death, marriage, and divorce—public information. The California Department of Public Health (CDPH) has maintained such records since 1905.

Back in the dark ages—a.k.a. before the Internet—tracking them down was a tedious process. But today, California Court Rule 8.83 ensures the public can access those electronic records. To access them, one only needs to contact (call or visit) the clerk’s office of the Superior Court where the case was filed (each California county has one).

A curious party can also search for records through the Public Libraries website if they know the first and last names of the person(s) involved.

You may not be a celebrity or have a million followers on Instagram. Still, there are numerous reasons you may feel uncomfortable with the idea of having the intimate details of your divorce out in the open for just anyone to read.

The end of a marriage is a messy, painful, contentious, all-too-often ugly process. Not only does it not bring out the best in people, it can highlight their very worst—either by bringing attention to big mistakes and bitter conflicts, or, in some cases, eliciting damaging allegations (true or not). Getting a divorce, practically by definition, means that you and your spouse aren’t seeing eye to eye, so even if neither one of you is intentionally lying, it’s not uncommon to present very different and sometimes hurtful versions of events, especially in high-conflict cases.

Having that information out there forever can be personally and professionally harmful in our information-flooded culture. Potential employers running background checks can discover allegations, true or not, of infidelity, domestic abuse, substance/addiction problems, financial fraud, and general bad behavior, in some situations, putting your professional license in jeopardy.

Or you may belong to a religious community that frowns on or forbids divorce or remarriage after divorce.

Your Marital Settlement Agreement (MSA) may contain private financial information and sensitive details about child custody arrangements.

So what can you do?

From a policy standpoint, your divorce court files are automatically a matter of public record. Still, California law does provide legal means by which you can, under certain circumstances, keep them—or some of them—private. However, certain sensitive details (such as social security numbers and financial accounts) will automatically be redacted from the record.

In a high-profile case or a situation involving extraordinarily delicate information, a judge can decide to seal the files completely—but that is rare. Even celebrity requests have been denied.

The court is responsible for maintaining the open record; transparency ensures accountability and fairness and supports public trust. Therefore, requesting that records be sealed is a relatively complex and laborious legal process; it depends on presenting a compelling justification for sealing (concerns about embarrassment or a simple desire for privacy are not enough) and finally requires a court order.

However, there are several essential things you and your spouse can do to limit the amount of private business that becomes public—primarily if you work together.

Stay out of court if possible. An amicable divorce is fairly straightforward. With fewer documents needed to be filed, they likely contain little incriminating or embarrassing information or inflammatory language. Avoiding a messy, high-conflict court battle by committing to working together—even through thorny issues and intense emotions—to come to a mutually satisfying MSA will give you far more control and prevent most dirty laundry from being aired. Your lawyer and a qualified therapist can help you focus on good communication, cooperation, a calm approach, and a collaborative process.

Take the high road. Be mindful at all times of how, where, and to whom you speak about your divorce and your ex. For the sake of privacy—and the integrity of your case—be very cautious about what you say to neighbors, friends, and coworkers; don’t air your grievances in texts, emails, or on social media. Save your venting and difficult discussions for close, trusted friends and family, especially your professional team—lawyer, therapist, financial adviser.

Sign a confidentiality agreement. Some couples opt for a non-disclosure or non-disparagement agreement (NDA), which prohibits the signing parties from sharing certain sensitive or damaging information during a divorce; in some cases, an NDA is included as a clause in a prenuptial agreement.

If you have concerns about what’s entering the public record, speak to your lawyer about how to best protect your privacy. While you may not be able to seal the complete court record of your divorce, a judge may look more favorably on a request for certain individual documents to be sealed. It’s important to know that you can only request to seal documents that you have filed or that you and your spouse have both agreed upon. Again, this may not be too difficult if your divorce is relatively amicable. If you’re in a contested situation, reaching an agreement on this issue may be challenging.

The trusted family attorneys at SFLG have decades of experience handling high-conflict and high-asset divorces. We are committed to helping you achieve the most discreet dissolution process possible, whether you settle out of court or go to trial.

By Debra Schoenberg

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