Tuesday, July 20, 2010

Privacy Concerns in a Divorce

At one time divorce files could be “sealed” so that no one other than the parties or their attorney could look at the files. That is no longer. Divorce files are public record and available to anyone with or without a legitimate purpose according to the Freedom of Information laws. In many places the files are available on line or soon will be. The only way to keep such information from prying eyes is to not have it in the record at all. Just because you are getting a divorce does not mean you have to expose all of your private information to other’s scrutiny.

The information in a divorce file can include financial information, property settlement agreements, and worst of all, the unproven allegations one parent is making against the other. In some cases parenting evaluations, including psychological evaluations, are available to the curious. A business owner may find very private company financial information in these filings.

While filing for divorce (technically, dissolution of marriage) is a matter of public record there are ways a divorcing couple can avoid most exposé of their private information. Several forms of what I call co-operative divorce provide the means to keep all but the most basic information confidential. The parties’ property settlement agreement, while completely enforceable as a contract, is not filed with the court.

The privacy concern is probably on of the most important reasons to work with an attorney rather than on line programs or do-it-yourself divorce. The first thing I notice when do-it-yourselfers want me to review their papers is how willing they are to list all their assets, all their debt and other private information in the documents. No one tells them there is another way.

When engaged in co-operative divorce a couple keeps court filings to the minimum required to obtain a final decree. The settlement terms, financial disclosure and other concerns remain private. If there is a parenting recommendation by an evaluator or counselor, that information remains confidential to the parties and their attorneys.

What constitutes as co-operative divorce? This can range from a couple that agrees on everything and asks an attorney to draft final documents to a mediated divorce model where the couple works with one attorney on resolving the various issues and preparing the final documents all the way to a complex situation in which both sides have attorneys but the attorneys and the parties contract to keep the matter out of court. This last model is called collaborative law.

Collaborative law is probably the most revolutionary idea for divorce since the onset of no fault divorce. Besides the privacy issues I discussed above, collaborative law costs about one-third of the traditional litigated divorce. Studies have shown that the outcomes in collaborative law are not one sided and influenced by the person with the stronger personality and more importantly, that the outcomes are resolved. Litigated divorces often are re-litigated, and continue to be modified even years later. The evidence is that the parties are more apt to keep the agreements and don’t have to go back to court. Most important of all: PRIVACY IS PRESERVED.

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