Divorce is frequently one of the most stressful periods of a person’s life. Cleaving a family in two — not just its assets, but its daily life, relationships and emotions — is inherently traumatic. It only worsens when the family’s privacy is shattered during the process.
Particularly for high-net-worth or well-known individuals, loss of privacy can have significant and, sometimes, harmful impacts on their lives. That is because anything filed in court during the divorce, including divorce settlements, becomes public record, viewable by anyone at any time unless the divorcing parties obtain a court order restricting public access to that information, which is known as a confidentiality protective order.
A classic example of this happened recently to former independent presidential candidate Robert F. Kennedy Jr. In 2012, RFK Jr. was going through a divorce. During a deposition, he testified about his doctor’s diagnosis that a parasitic worm had invaded his brain, eaten a portion of it, and then died. RFK Jr. likely had no idea that 12 years later, he would run for president, or that when he did, someone would dig through his old divorce records and expose his deposition testimony to the media. But, because there was no court order shielding those records from curious eyes, the now-infamous brain worm became a public story in his, eventually unsuccessful, presidential campaign.
Whether you’re a high-profile public figure or not, here’s how to protect your and your family’s privacy during and after the divorce process.
What should remain private?
In general, your attorney should try to keep private anything that could cause embarrassment or damage to your or your family’s reputation or assets upon becoming public knowledge. Social security numbers, bank and investment account numbers and other personal or financial information that could be used for identity theft are the most obvious and highest priority.
If a spouse’s business is involved in the divorce, it is critical to maintain as much privacy as possible around the business’s proprietary records and financial information. Divorces frequently involve business valuations that require analysis of detailed financial reports, expense records, employment contracts, etc. Allowing such information to become public knowledge could damage a business’s reputation or help its competitors.
Divorce also typically entails an investigation into each spouse’s personal finances and spending habits that can get exposed to public scrutiny and gossip unless proper precautions are taken. If one spouse is spending unusual amounts of money on entertainment and gifts in an extramarital affair, for instance, the other spouse’s attorney may seek to stop the waste of marital assets by disclosing the illicit spending in a publicly filed pleading, exposing a family’s dirty laundry for all to see.
In addition to financial matters, personal matters should also be kept confidential where possible. In divorces involving children, for example, parenting disputes in a divorce may involve highly private information about children with special needs or children who have experienced physical or emotional abuse. It is also not uncommon for a divorce to involve exaggerated or false accusations between spouses that could irreparably damage reputations and also cause further trauma to the children. Parents need to safeguard their children’s privacy as well as their own.
How can divorce-related information be kept private?
The main bulwark standing between you and public disclosure of your private information in a divorce is a confidentiality protective order. Where such an order is requested by the parties and entered by a judge, it will bar anyone involved in the divorce from revealing confidential information to anyone outside a narrow circle of lawyers, court officials and others who are directly involved, thus preventing confidential information from becoming public knowledge. Anyone who violates the order risks significant sanctions from the court.
If your divorce involves personal or professional information you do not want to become public, even if you’re unsure how its disclosure might impact you, it is critical for your attorney to seek a confidentiality protective order before it’s too late. As RFK Jr. found to his chagrin, failing to protect private information can have unexpected and very far-reaching consequences.
With a confidentiality protective order in place, all private information disclosed during discovery or at trial is marked “confidential” and kept out of the public record. Documents can be sealed by the court or else included in the public record “by reference only,” so that they are accessible to the attorneys and the judge but remain inaccessible to the public. However, the ability to keep court records private is not unlimited. Because there is a commitment to transparency in judicial proceedings, judges will only keep information hidden from the public when the risk of harm to individuals outweighs the public interest.
Can I still get a protective order if I opt for divorce mediation?
Since mediation is a private proceeding, judges do not typically issue protective orders to cover mediation. By its nature, however, mediation actually offers more privacy than a court proceeding, because the mediation process itself is usually limited to the divorcing spouses, their attorneys and a neutral third party or mediator. Since no private information needs to be filed with the court, it is easier for the parties and their attorneys to negotiate confidentiality agreements that prevent both parties from disclosing personal information.
No one wants the public to be privy to their sensitive information. With a confidentiality protective order, it is possible to protect personal and proprietary information from public disclosure in a divorce. That is why, as you navigate the divorce process, it is important to work with an experienced and knowledgeable family law attorney to help you determine what information can and should be protected.