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Friday, November 18, 2016

Who Needs to Know? - 5 Best Practices to Protect Privacy in Divorce

Divorcing spouses that choose outside-of-court dispute resolution, like mediation or collaborative law, often list privacy as one of their primary reasons for choosing to avoid court.  This may seem obvious when thinking about the publicity around celebrity divorces but anyone having their dirty laundry aired publicly can be damaged both emotionally and financially.  Below are some precautions that practitioners and clients can take to protect private information in divorces, even if they're not a celebrity.

1.  Protect Personal Identifying Data: 

The court process in many states is public (in Massachusetts this includes hearings, most court documents, and trials), however there are some limitations on what information is public.  Certain documents, such as the Financial Statements, are typically impounded, meaning the public does not have access to those documents and they are only available to court personnel, parties and their counsel.  In addition, most courts encourage parties to limit what information they share.  

In Massachusetts, the SJC has provided "Interim Guidelines designed to protect against identity theft by having court filers omit or delete certain personal identifying information, such as social security numbers. These Guidelines for the Protection of Personal Identifying Data (PID) in Publicly Accessible Court Documents are non-binding and took effect on September 1, 2009."

These Interim Guidelines encourage the redaction or omission of the parties' social security numbers, driver's license numbers, tax id numbers, passport numbers, and mother's maiden names.  There are exceptions listed, but clearly the best practice is to err on the side of not including this information, even on impounded documents, unless required.

In a Massachusetts practice, this means that we strongly advise clients to only use last four digits of their social security and account numbers where that information is required (such as on financial statements), and not to use their full information.  For professionals any such disclosure of client's information that isn't required could be considered a violation of M.G.L. 93H.  This includes redacting that information from any document that might be included as an exhibit (such as a tax return or account statement).

2. Don't Air the Dirty Laundry:

One of the problems with trying to settle a divorce case through the court process is that an adversarial process encourages people to take extreme positions.  When presenting to a court this is usually a client's last chance to get their best possible result, which requires that they make their "best case" and the other side's "worst case."  In divorce, this best case/worst case information can be very personal.  

While presenting to a court is sometimes necessary that doesn't mean that all the dirty laundry needs to be put into public documents.  Parties and counsel should be thoughtful about what they put in writing and how they write it.  This is primarily an exercise in common sense, which unfortunately may be a difficult request when client's are emotional and scared.  One question that can be used to help client's draw that line appropriately is to ask "Would you be comfortable with your child reading this statement?"

Would you be comfortable with your child reading this statement?

If your answer to that question is no, but a truly damaging piece of information is necessary for an argument in court, there is a process for requesting impoundment of sensitive information:

3. Ask for Particularly Private Information to be Impounded:

While some documents are impounded, most court documents are not:  
“[I]mpoundment is always the exception to the rule, and the power to deny public access to judicial records is to be 'strictly construed in favor of the general principle of publicity.'” Republican Co. v. Appeals Court, 442 Mass. 218, 223 (2004), quoting Commonwealth v. Blondin, 324 Mass. 564, 571 (1949)." - Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure
Protecting public individuals from private or hidden government action is an important principle of a democratic republic.  So in states like Massachusetts, impoundment is the exception, not the rule, and is only available in limited circumstances. It is therefore difficult to impound certain information.  However, there are many circumstances where courts in Massachusetts will agree it is appropriate.  There are very careful precautions that one should take when requesting impoundment.  For example:  
  • when filing a Motion to Impound you should probably also ask that the Motion to Impound be impounded as it may also include sensitive information; 
  • always file the Motion to Impound before filing the sensitive information; and 
  • make sure to include only the necessary information to argue impoundment in the Motion to Impound. 
In Massachusetts the court has specific rules and procedures for this type of request contained in the Handbook on Trial Court Rule VIII, The Uniform Rules on Impoundment Procedure.  This is a complicated process and we recommend consulting with counsel when making this type of request.

4.  Protect Sensitive Financial Agreements by Including in Impounded Documents:

In Massachusetts, the Financial Statements in a divorce are impounded automatically (without having to present a Motion to Impound as described above), but the Divorce Agreement is public.  It is typical, therefore, to reference accounts as listed in the Financial Statement and not disclose unnecessary information about accounts in the Divorce Agreement.  Incorporating the information via reference to the Financial Statement makes that document part of the settlement so it is very important that both parties carefully prepare their Financial Statements to be true, accurate and complete.

In addition, it is possible to use this technique more creatively to protect certain information.  For example, if the parties are agreeing pursuant to their Divorce Agreement to sell their house, they likely want to include some parameters around that sale in the Agreement.  They may want to list details about the agreed upon sale price and a mechanism for reaching agreements to evaluate a lower offer.  Putting that information in the public document, however, could be to their detriment.  If a potential buyer reviewed that public Agreement they might use that information to their advantage in negotiating a sale price for the house.  That risk can be avoided by including that same information as an addendum to both parties' Financial Statements and only referencing that addendum in the public document.

5.  Choose a Private Process from the Beginning:

As we indicated at the beginning of this article, privacy is a major concern for many families and one of the primary reasons that a family may choose to avoid court.  There are options for resolving conflict which do not require airing the dirty laundry in court, and which allow for thoughtful planning about what information should be kept private.  Mediation and Collaborative Law are both out-of-court resolution options which assist parties in reaching agreements in an office setting instead of a public courthouse.

Mediation and Collaborative Law have many other advantages as well which we encourage you to read more about on our website.  For the purposes of this article and focusing on privacy there are two ways that mediation and collaborative law protect a client's privacy:

First, mediation and collaborative law are both confidential processes in which the parties typically sign a written agreement that protects the discussions and proposals that occur within the process.  A recent Massachusetts case upheld the confidentiality of the mediation process even in some extreme circumstances, so long as the requirements of the privilege statute were met.

Second, mediation and collaborative law allow parties to draft agreements and court documents in a thoughtful way, so that even a public Divorce Agreement filed at the end of a case can be crafted in a way that limits public exposure.  The example given in section 4, above, of including asset division information in the impounded financial statement instead of the Agreement, is the type of solution that is encouraged by the joint problem solving in mediation and collaborative law.

Empowerment through Privacy

Divorce, for many, can be very difficult, but considering all of the options can reduce the amount of stress, embarrassment, tension, and financial impact that people experience from divorce.  The control of information is often the difference between feeling empowered and feeling powerless.  Following these tips should help clients and professionals control how much information is kept private, thereby empowering spouses to experience a less traumatic divorce.


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