If I get divorced in New York, the documents pertaining to my divorce remain confidential. If my spouse and I cannot agree on issues and we end up in court, the court proceedings that take place are not open to the public. If I get divorced in California, the documents pertaining to my divorce become a matter of public record. If my spouse and I cannot agree on issues and we end up in court, the court proceedings take place in an open courtroom wherein the public can be present.
And so, depending upon the state in which you get divorced, your family business can either remain private, or you may find yourself unwittingly in the public eye. Why should anyone's family business become available to the public?
When one enters into a marriage or a domestic partnership, they do it privately. While the parties get a marriage license, no one is privy to whatever agreements the parties may reach regarding refinances, domestic arrangements, childcare arrangements and the like. In fact, the law is even written in a manner to protect the confidentiality of the marital relationship. For example, a spouse can refuse to testify against his or her spouse in a legal proceeding, and the communications between the spouses are generally held to be confidential and not subject to disclosure. Even Federal law addresses this to some extent in keeping tax return information confidential. Yet, if parties end up in divorce court in some states, suddenly there is no confidentiality whatsoever. And divorces, being the nasty animals that they often are, dredge up all kinds of allegations and personal information. Suddenly, the dirty little secrets that one spouse confided in the other become the public disclosures that the entire world has a right to know.
The proponents of public family law courts argue that somehow, keeping these matters open to the public, makes them subject to oversight and that public scrutiny insures the impartiality of the court. The biggest proponent of public family law proceedings in California is the media, fearful that if the New York system is implemented they will be cut off from information that leads to ratings and material for tabloid and other news programs. Think Britney Spears here. And apparently, in California the media lobby is much stronger than it is in New York.
It seems somewhat absurd that one can make their own private arrangements regarding their marriage, but when it comes to a divorce, everything has to become public. More than the absurdity of it, is the potentiality for harm that exists by forcing divorcing parties to air their dirty laundry in public. The allegations then trickle down to all sorts of unintended recipients, including other family members and children. Financial information becomes available not only to those who are curious, but those who want to use the information to commit the crime of identity theft. While this information would remain confidential in New York, in California, the legislature has implemented a procedure requiring parties to jump through all sorts of hoops to try to get documents sealed, and the policy of the state, and hence the courts, is to deny those requests as much as possible.
A few years ago, I sponsored a bill in the California legislature to try to allow divorce records to be sealed. The bill didn't make it very far in the legislature. It was immediately attacked in the press as intending to protect the very rich, when in fact, it would have protected every divorce litigant, rich or poor. The media insisted it had "a right to know", and there weren't too many members of the California Assembly wanting to challenge that. This approach was completely different than the one I experienced just a short time earlier when I appeared in New York Domestic Relations Court with a client who is a public figure. There, the court proceedings, and all of the documents filed therein remained confidential, much to the frustration of the media which was waiting outside of the courthouse, hoping to get information from myself or my client when we walked out at the conclusion of the proceedings.
If a relationship does not work out, it should be a matter that the parties are able to resolve privately. The public does not have any real interest in hearing people's private problems. The only "public interest" is really a media interest in exposing private information. Unsubstantiated allegations are made all the time in divorce court. The public disclosure of these allegations can have long-term implications for the parties, including damage to the parties' reputation and the psychological well-being of children. The disclosure of financial information, especially in this age of technology, puts people at risk for becoming easy victims of criminal activity. The argument that public family law courts are subject to oversight is a fallacy. In New York and those states where the proceedings are not open to the public, there are procedures in place for oversight, including the courts of appeal.
People should be able to get divorced in a private setting with dignity. Family business is just that.
Follow Fred Silberberg on Twitter: www.twitter.com/fredsilberberg