You may know of the notorious saga of grocery store billionaire, Yucaipa Cos. founder and investor, political contributor, and well-known friend of Bill and friend of Hillary, Ron Burkle, and his herculean efforts to keep the intimate details of his messy divorce out of the public’s prying eyes.
In case you missed it, Burkle and his attorneys attempted to seal all the records in his divorce case to preclude public access to his personal information (his financial information, his son’s whereabouts and the contents of a disputed postmarital agreement). When the California state court denied his motion in full, an urgent law passed in California--no kidding, 2024.6--making the sealing of divorce documents mandatory upon the request of any party, if they contained financial information.
In 2004, Burkle and his counsel relied upon this new law when they asked the court, again, to seal most of the records in his divorce case. In response, not only did his wife, Janet, and her attorneys oppose this motion, but so did lawyers for the press, namely, The Associated Press, the Los Angeles Times, and the California Newspaper Publishers Association. Together, they filed papers opposing the new law as unconstitutional, and they won.
Still, Burkle filed a motion to seal his records. Though many of his records were ultimately released, he prevailed in the divorce case.
The public’s right to know what happens in the courthouses of America is older than, well, America. Like so many of our other legal traditions, open access to the public courts comes to us from England. What’s more, 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 domestic relations cases.
But while the public generally has a right to attend public trials and 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 some states this balancing test--to seal or not to seal a civil file--is performed according to state law (statute, code or constitution), while others rely upon common law (decisional law contained in appellate opinions). Still others are guided by court rules that govern the administration of justice in the state.
When divorce is imminent or ongoing, most people today seek advice on how to protect their personal and financial interests. While in most cases that means 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. In the old days, there really was a two-track system in some states, most notably Connecticut, where the rich or powerful could keep their public cases secret. But no more. If it looks like a private settlement is impossible and you are headed to court, beware.
For instance, many courts 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.
Still, it is possible to opt out of this privacy vs. public access problem by settling your marital matter privately via mediation, arbitration or any other complementary dispute-resolution method that doesn’t rely upon the courts for adjudication. By settling outside the court system, only your actual divorce petition and decree (appropriately edited, or “redacted,” from bearing any personal information) will be on file, if not sealed. If Jack Welch settled with Jane, she never would have had to file the financial declaration that alerted the world to the hidden universe of retired-executive perquisites.
If you are able to settle your divorce outside the court system, remember to request (and, naturally, pay for) tactful silence from your former spouse to avoid the possibility of kiss and tell publications in the future. (If you have any doubt about the effectiveness of these “no tell” clauses, just ask JLo or the Donald Trump about them.) Also, insert a mandatory arbitration clause into any privately settled agreement, ensuring that any enforcement or breach of contract suit ends up in a private forum, not the public forum you initially avoided by privately resolving your matter in the first instance.
Finally, even if you manage to seal your divorce file, a subsequent application to release those records could cause you trouble. Remember Jack Ryan? He was the Illinois Republican who wanted to run for U.S. senator, until the records of a post-divorce custody battle were unsealed.
So, if possible, play nice and settle, secretly.
Read the rest of the article at Forbes.
Recent Comments