“[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
- 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 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.