Previously featured on the Collaborative Divorce California Blog

Divorce: Private or Public?

Divorce can be difficult no matter the circumstances.  What you may not know is how much of your personal matter and financial information becomes public, available to any and everyone who can get to the courthouse or use a computer.  This includes your children, co-workers, and friends.  Many times, it can be difficult to know what can stay private and what will be made public.  In my latest blog, I share what in a divorce can be kept private and what will be entirely public.

Can a Divorce Really Be Private?

Unfortunately, in California, once you involve the courts with your marriage, it can be difficult to maintain any sense of privacy.  Your divorce petition (the documents that open the case) will be a public record.  In these documents, the reason for your divorce is most often stated as “Irreconcilable differences”, so no big revelation there.  But you are required to mark certain legal “requests”, if you will, in order to give the court the ability to make certain orders if you and your partner cannot reach agreements.  If you cannot agree on a divorce settlement, you and your spouse will need to file financial records and other documents directly in the court proceedings.  Anything filed with the court becomes part of the public court file.  Yes, your financial disclosures (which include tax returns, pay stubs, and bank account statements).  If you end up in a trial, you may need to disclose a lot of uncomfortable information here as well, often far more detailed and well beyond just financial information; anyone over 18 can sit in and watch the trial.

In a Collaborative Divorce, you are able to stay out of court.  This gives you more opportunity to keep things private.  In a collaborative process, you can limit what gets filed with the court.  In the Collaborative Divorce process, both sides still have their attorneys, but the collaborative team includes a family specialist or divorce coach and a neutral financial professional.  The process is designed to help you work out what will be the best for you and your children with the help of the Collaborative Divorce team.

Anything you disclose to your attorney is confidential and protected by attorney-client privilege, and you should share anything that could potentially create problems during the divorce process.  The collaborative process itself is also confidential, to encourage couples to be transparent without the fear of having sensitive personal information used against them in court.  Working with a Collaborative Divorce Team allows couples to create agreements with confidence, thereby eliminating the need for a court to intervene and allowing them to keep their personal information private.

How to Limit What Information Becomes Public

With very few exceptions, anything filed with the court in a divorce case becomes a public record, so how can you protect yourself?  Even though there are a lot of things you can’t keep to yourself, there may be others you can protect.  The best way to keep personal details private is to work through your divorce in an out of court process like a Collaborative Divorce with your spouse so that you can choose together what is filed and how you do it.

Private Details of Life

Too often, people share too many details about their spouse in the public court forum, whether it is in declarations filed with the court, at a hearing for temporary orders, or at trial.  Written documents and testimony recorded by a court reporter are kept in public court files indefinitely.  While it may feel good in the moment to tell the world that your spouse cheated on your taxes and you have proof, you just admitted to signing taxes you knew were false; it was fine while you were married, but now that there’s a divorce, you suddenly recognize this was wrong and your spouse is to blame.  Same thing for all the wild parties you went to, where alcohol flowed in abundance and pot was just a fun thing to do; where leaving your eight-year-old child alone for an hour and half while you went to the gym was never a concern before, now that you are in divorce court, it’s child neglect and makes you an unfit parent.  And let’s not forget the mother of all, typically, not legally relevant accusations written in a public court document: the affair with your spouse’s best friend.  Divorce cases often read like a soap opera.  What may feel good or justified today, may feel less so when your child becomes an adult and decides to look up your divorce court file; or when your co-worker reads the details to make you look bad before a job promotion.  In a collaborative divorce, you can air your grievances, working with family therapists to manage the strong emotions and pain stemming from your history together so that you can keep your private life private and move on to the next chapter in your life.

Your Children

Your children are probably the most innocent of all “collateral damage” in a divorce, regardless of their age.  When you file a parenting plan for minor and/or disabled dependent adult children, you do not need to put in all the details about your children’s activities or your work schedule if you can come to an agreement beforehand.  You need only file the parenting time-share agreement with the Court, so that the judge knows what to enforce if there is a later disagreement or breach of the agreements.  Usually, no one needs to know that you have specific reasons for your agreed-on schedule.

When it comes to adult children, often there are financial ties such as college expenses and accounts, loans, or even holding on to the family home because an adult child is living with the parent in the home.  It can feel like a breach of privacy including your adult child’s name and financial needs in a public divorce court document.  Some of this information can be kept private if you make the necessary arrangements with the help of your lawyers, neutral financial specialist, and family specialist in a Collaborative Divorce process.

Financial Information

It can be uncomfortable to share the details of your financial accounts with the world.  Instead of filing the financial disclosures with your statements, tax returns, and pay stubs attached, you can serve these on your spouse and file a single-page court form that tells the court you complied with the disclosure requirements.  This document is signed under penalty of perjury, attesting that you made full and complete disclosure.  You keep the details of your finances private and are still protected in the event your spouse was less than honest.  How?  If you later learn that your spouse “forgot” the million and half they stashed in the Caiman Islands, you can, at that point in time, file the disclosures your spouse served on you (making them public record) to prove to the court that your spouse did not make full and honest disclosure; the Court would have the ability to impose the appropriate penalties.  So, you are still legally protected, without having to make your financial information public, unless absolutely necessary.

When it comes to your final agreements, again, you can keep the details of your financials private depending on the situation.  For most cases, you can have a written agreement that simply states “wife agrees to 50% of Chase account ending in 1692” instead of putting in all the details.  In high-profile divorces, or situations that require greater privacy (such as a privately held company about to go public), parties can file an agreement that eliminates the sensitive financial information completely, referencing a more detailed agreement signed by the parties that will only be filed for purposes of clarification needed by the court or enforcement.

When you decide as a couple to work together, you can solve a lot of problems, while keeping sensitive information private.  While this is a significant benefit, it doesn’t come easy when emotions are high, blame is “clear”, and you want your pound of flesh; unfortunately, emotional reactions often result in regret.  Working with a professional collaborative team helps keep you focused on what is best for your children and your emotional and financial well-being.  Learning these new ways of interacting early will ultimately benefit everyone for many years.

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