Confidentiality

This article was written by Hance | Wickham partner Larry Hance.

 

I ran across a recent article that announced that the Governor of Alabama and his wife of 50 years were getting divorced. Specifically, it announced that the details of their divorce would be kept confidential – which is a courtesy you’d expect of someone in high public office who’s been married that long.

 

But confidentiality isn’t something that’s afforded to everyone. If you divorce via litigation, in a courtroom, the testimony associated with the divorce are public record. In Texas, it requires the filing of a motion to seal those files – except for, due to a curious provision in Texas law, for any county that has 3.4 million people or more. (Currently, only one Texas county – Harris – meets that definition.)

 

We have a history of openness in our legal system, and public trials and civil arguments are far and away the norm. I remember one divorce case I had involving a successful businessman, a key figure with a global company, who wanted his litigated divorce to be confidential – and I especially remember having to break it to him that this wasn’t a privilege he should count on. If a case involved a public figure, like, say, another judge, the court system allows for legal proceedings to take place in a judge’s chambers with just the court reporter present as a witness, but this is definitely not an option for just anyone.

 

The best way to keep your divorce confidential, of course, is to avoid taking it to the courthouse in the first place. Couples who are understandably wary of a “kitchen table” divorce, but want to work out an agreement without litigating, have the option of either collaborative divorce or mediation. Both happen in offices rather than courtrooms, with financial details and other sensitive matters staying within the office for the duration of the proceedings.

 

For people looking to keep their divorces confidential, my first piece of advice is to find a lawyer who has background and training in either collaborative law or mediation, and to talk through the options.

 

Deciding on collaborative divorce or mediation for yourself is one thing, of course – convincing your spouse to go along with that is quite another. If your spouse desires confidentiality as much as you do, that might be enough of a selling point to go one of those two routes. If not – or if you’d rather not lead with your wishes to keep the divorce private and out of the courtroom, there are plenty of other reasons to steer away from litigation.

 

Both collaborative divorce and litigation allow you to negotiate the settlement on your schedule rather than the court’s, and puts control more firmly in the divorcing couple’s hands. Collaborative divorce can and often will include a mental health professional to help with communication and with the emotional needs of the divorcing couple and their children. Couples looking for a more customized settlement to address their unique situations are more likely to get it by forging it themselves. And when a lawyer agrees to participate in a collaborative divorce or mediation, he or she prepares to forge a solution rather than to fight for one – a perspective that can get you to a settlement more expediently.

 

If you find yourself preparing for litigation, be open with your lawyer about what you want to keep confidential and why you want to do so. Then, and only then, can your lawyer help you strategize about how to best guard the privacy of your divorce.