The litigated divorce is a public affair. The courtrooms where they take place are open to the public. Anything filed with the Court is available for anyone curious enough to request a copy. When couples file paperwork attacking, criticizing and pointing out all the character flaws of the other spouse, they are opening their private lives to the scrutiny of any stranger interested in gathering the dirt. Couples do not need to go down this road. One obvious solution to the privacy issue is choosing a method of divorcing that does not put the couple on public display as the decisions of their divorce are made. San Diego Divorce Mediation provides a process for resolving the divorce behind closed doors which allows the couple to tackle the issues away from the public eye. If you are unable to prevent your case from being litigated you can at least seek to limit the damage by taking the high road with your filings as much as possible. This week we explore these two approaches to the privacy challenges facing divorcing couples.
The Privacy of Mediation To get divorced you must file paperwork with the Court to initiate the case. It is only in extremely rare situations that a file can be sealed by the Court. If someone wants to find out if you are divorcing, they will be able to do so. There is not much else, however, that needs to go into the public file. The couple is required to exchange detailed information about their assets, debts and incomes yet none of that paperwork is required to be filed with the Court and just a single form confirming the exchange without all the detail is what gets placed in the file. The terms of the agreement reached by the couple also will typically be placed in the file but it can be done in a way that confirms the responsibilities and obligations between spouses while minimizing details that the couple might want to otherwise keep confidential between them. The couple also has the option to file a Memorandum of Agreement which references terms that are otherwise kept out of the Court file. If a nosey person wants to snoop around in the Court file there will be little detail related to the divorce for them to obtain.
Much of the damaging stuff filed in litigated Court matters is related to trying to convince the Judge to rule favorably for either spouse. In mediation, the conversation that takes place to get to settlement does not take place in front of the Judge but behind closed doors between the spouses. This does not mean the couple cannot address sensitive or even inflammatory issues there may be between them which may impact the issues that need to be sorted out. The mediator will seek to provide a supportive and productive environment where any such issues can be worked through. If the couple is able to find a mutually acceptable solution then the messy details are not placed in the public file or aired in the public courtroom to cause embarrassment, hostility and counter attacks in open view to all. These can be very challenging cases to work through in mediation but the resulting preservation of privacy can allow the spouses to maneuver through their divorce avoiding inevitable escalations that result when these attacks are made in public.
Disclosure in Mediation As mentioned above, paperwork detailing the business affairs of the couple needs to be exchanged between them to comply with the strict disclosure requirements of the Court, but that paperwork when the case is not being litigated, does not need to be filed with the Court. This is not the case when cases are litigated as the detailed information about the assets, debts and income, needs to be presented to the Judge so they can make the decisions they are being asked to make regarding dividing assets and setting support. Anyone can gain access to the Income & Expense form filed whenever support is at issue, which reveals the fine details of the income situation of the couple as well as their spending. Their assets and debts as well as values and debt balances are there for all to see. When the couple mediates successfully they do not need to provide these forms to the Court so while they each can enjoy the benefit of the full disclosure, other people trying to peek in on their business are unable to do so. If given the chance to avoid the public’s scrutinizing eye, I don’t quite understand why anyone would opt to handle their divorce for all the world to see. I understand that sometimes litigation can’t be avoided.
Privacy in the Litigated Divorce? As mentioned above, there are circumstances where the Court will grant a motion to seal the Court file. Suffice it to say that it is a very rare occurrence for the Court to do so and you should assume that whatever makes it into your file will be there for all to see. So what strategies can you employ if divorce mediation is not an option and your spouse has already lawyered up and chosen to go the litigation route?
Taking the High Road When you sit down with your lawyer to map your course through the divorce process you can consciously seek to keep the skeletons in the closets and focus on the positive to accomplish your end goal. It has been my experience that Judges are much more ready to listen to a party who has good things to say about attributes of the other party rather than everything being a criticism or attack. When the initiating spouse does not focus on all the flaws of the other spouse but instead objectively lists the attributes and contributions made by each, then moves to practical options for the Court to consider, the other spouse is much more inclined to take a similar tack with their response. On the other hand, if the first spouse comes out with no holds barred, rest assured the other spouse will likewise go below the belt, and the fight is on.
This approach doesn’t always work. Sometimes there are facts that can’t be ignored and are important for the Court to consider when decisions, such as those that impact the safety of a child, are being made. There should be thoughtfulness in each word that is put into the Court file. Deciding to put something that will be hurtful to the other parent but is essential for the Court’s consideration does not mean you need to open the floodgates and let all negativity fly. I mentioned that a party that can mention the good with the bad may come across as much more credible to the Judge, and make the Judge more apt to listen when solutions are being proposed. If you are going to put your words on public display by filing them in your divorce file, choosing each word wisely is a healthy strategy. Finding counsel who recognizes this value may be something to consider. This approach may minimize the duration and keep the temperature down, may preserve some semblance of a relationship for the future which is valuable especially if you will be co-parenting, and will minimize the public display of details best left out of public view.
Stay out of the Spotlight Divorce is personal. It is difficult and emotional. Nobody wants to have to go through a divorce and if they have to, nobody wants to highlight every sordid detail. Divorce should be between the couple. Consider selecting a process that keeps it that way and allows for it to be handled in private. If it must happen in the public setting of the courtroom, be thoughtful about what gets put on display. Look for ways to minimize the attacks and focus on the constructive solutions. Nobody appreciates being criticized, especially for all the world to see. Everything you decide to put into your divorce file is a reflection of you and will impact your case. Be thoughtful. Your words matter.