Article Author: NJ Council of Collaborative Practice Groups
The digital age in which we live has created a whole new level of transparency in our lives. Whether we realize it or not, our digital communication via text messages, social media, and email are creating a detailed record of our daily activity. Smart-phones are even creating a record of our GPS location. This digital trail is increasingly being used as evidence in divorce and custody cases.
The record that is created by our digital lives has generated a renewed interest in protecting privacy during divorce. This is true not only with regard to personal details before the divorce, but also as it pertains to the divorce proceedings. When divorce becomes adversarial and the “mudslinging” starts, the negative impact it can have on personal and professional reputations is a matter of great concern.
In New Jersey, all divorce documents and proceedings become part of the court record and are potentially accessible by the public. Trial testimony and motion papers that can include allegations of bad behavior, as well as detailed information about parties’ assets and debts can become part of the public record. Where one spouse has an interest in a business, or in custody cases in which other individuals have information regarding the children, discovery can include persons or entities who are not parties to the litigation. Valuation of a spouse’s interest in a business may require a complete review of the company’s finances and involve other business owners and employees. In custody cases, babysitters, therapists, teachers and other family members may be called as witnesses.
The issue of privacy even goes beyond the airing of dirty laundry and the revealing of personal information by significantly increasing the cost of divorce litigation. Whether certain information is admissible in divorce litigation is a complex matter determined on a case-by-case basis. Demands for production of documents and subpoenas are often met with motions to quash based on an invasion of privacy. The stress and cost of motion practice and court appearances can make an already painful situation that much more difficult, drawn-out and expensive. And while it is possible to have part of a divorce record sealed, a party must be able to show good cause for doing so. New Jersey law strongly encourages public access to court records and therefore the court must weigh that right with the merits of the request. Having your attorney object to discovery or file an application to seal court records or limit the disclosure of information further increases the cost of your divorce.
Collaborative Divorce Protects Privacy
In collaborative law, the only time the parties appear in court is to present the divorce agreement and formally finalize the divorce. All other communication, meetings, and negotiation are conducted outside of the court process and remain confidential. Because the parties agree to full disclosure and transparency, there is no need for court proceedings to compel information. Collaborative law allows couples to focus on finding solutions that are in the best interest of their families and creates a climate in which the personal and professional details of the couple’s lives remain private.