Thursday, January 29th, 2009
1. Can I seal the record of my divorce case?
In most cases the records of your divorce case will not be sealed. Pursuant to Rule 1:2-1 all trials, hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences and appeals shall be conducted in open court, unless otherwise provided by rule or statute
Even though there is a presumption that allows the public to have access to court records that right is not absolute. A family court judge has the power to seal court records when the interests of privacy outweigh the public right’s to know. A divorce litigant may make an application to the court to seal the file or any part of it. Pursuant to Rule 5:3-2(b), the court upon a demonstration of “good cause” and notice to all parties, shall have the authority to order that a family part file, or any portion thereof be sealed. The court must have “good cause” to seal any part of a divorce file. A divorce court must balance the rights of the public interest against the rights of the parties.
2. How much of my private life will become a public record?
With all of the celebrity divorces in the news lately and all the dirty details of their private lives being dragged out on their front lawns for everyone to see, it leaves one wondering, is anyone entitled to any privacy when it comes to a divorce? Many of my clients come to my office knowing that their divorce will be less than amicable. They know their soon-to-be ex will most likely be dishing out the dirt of their relationship. Consequently, many of my clients worry that their private information will be made public through their court documents. They want to know if all of their divorce documents will be made public, and if there is any way they can get their divorce records sealed.
In New Jersey, all divorce and family law documents and proceedings are accessible to the public. However, a litigant can file an application that requests that the court seal certain documents. It is important to understand that having divorce records sealed is not necessarily automatically granted. There is a competing public right to have access to court records and proceedings. Nevertheless, it never hurts to ask the court!
3. What grounds can I raise to the court to convince it to seal my divorce case?
The public’s right to know what happens in the courthouses of the United Sates is firmly established. The U.S. Supreme Court has held that our own First Amendment guarantees public access to the federal courts, “to ensure that court proceedings are conducted fairly and impartially and that the judicial process is open and accountable.” This right extends to state courts in both criminal and civil matters, including divorce cases. But while the public generally has a right to attend public trials and to review all documents or pleadings upon which a court relies in making a decision, those rights can be limited when a litigant’s right to privacy exceeds the public’s right to know.
In New Jersey the courts will use a balancing test to assess whether to seal or not to seal a divorce case. Divorce court records (i.e., materials used during a trial or submitted to the court as a basis for its decision in a case) are presumed to be open to the public unless those records must remain confidential under existing law (adoption records, sexual crime victim identities and the like). Or if a person can prove that his need for privacy outweighs the public’s right to see justice in action. Plus, he must show that the proposed sealing is narrowly tailored, and that there are no less restrictive means exist to achieve the overriding interest
When a divorce is imminent or ongoing, most people today seek advice on how to protect their personal and financial interests. While in most cases that mean seeing an attorney to learn what you can expect to get or give under the law and facts of a particular case, in many instances the first trip to the attorney includes a request to keep the proceedings private, if possible.
There are safeguards that the court uses to protect the personal information of litigants. The New Jersey judiciary allow litigants or their attorneys to use only the last four digits of Social Security numbers, financial account numbers, driver’s license numbers and the like in filed court records. The real numbers are kept safe and offline. Children can be identified by initials only, and instead of providing full birth dates, only years of birth are required.
4. What are some important cases that have addressed the sealing of divorce court records?
A. Black v. Walker, 295 N.J. Super. 244 (App. Div. 1996).
Here the court noted that all names used in this opinion were fictitious in order to protect the privacy of the parties.
B. Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992).
Here the court noted that the names of the parties were fictitious in this domestic violence action in order to protect the privacy of the complainant and the children.
C. Smith v. Smith, 379 N.J. Super 447 (Ch. Div. 2004).
A very recent case is Smith v. Smith, 379 N.J. Super. 447 (Ch. Div. 2004). Here, the parties were married in August of 2006, and they separated in December of 2003. The divorce complaint was filed by Karla Smith in October 2003. When the parties separated the plaintiff sought custody of the two children who were three and five years of age. The primary issue at trial was the plaintiff’s desire to relocate to South Carolina. In South Carolina the plaintiff’s father was a wealthy businessman and he offered his daughter a job there.
The defendant-father opposed the application to relocate to South Carolina. Moreover, the defendant asserted that the plaintiff and her father abused alcoholic beverages. The defendant alleged that the excessive alcohol consumption placed the children’s care at risk and set a poor example for the children. The defendant also retained an expert on alcohol usage who evaluated the drinking habit’s of the plaintiff’s parents and was expected to testify on his behalf. The plaintiff strenuously denied that she or her parents abused alcohol.
Right before the start of the trial, the plaintiff filed a motion to seal the case file. The plaintiff submitted that the defendant’s allegations were baseless and could be very damaging to her family’s reputation. The trial judge denied this application. The court noted that New Jersey has a “long and venerable tradition” of being open to the public. Moreover, the court noted that what transpires in the public courtroom is public property. The court noted that it could not find any published opinion since 1992 that found “good cause” to seal a New Jersey divorce proceeding. Therefore, the court held that the “mere embarrassment of the parties connected to a divorce action,” without a showing of a detrimental impact upon the minor children, was insufficient to seal the divorce file. In conclusion the Smith court held that the strong presumption of open judicial proceedings outweighed the plaintiff’s concerns for privacy
D. Stern v. Stern, 66 N.J. 340 (1975).
Here the court allowed the use of initials to conceal the true identity of the litigants. The New Jersey Supreme Court held that while that procedure may serve a legitimate purpose where the interests of the children are issue, concealing the record on the basis that one of the parities was a prominent attorney was an insufficient reason. Id. at 342.