Divorce Litigation and Privacy and the Mediation Alternative

It is a hallmark of justice in this country that court proceedings are open to the public. For the most part, we do not have judges deciding the fate of people in closed proceedings. The proceedings are open to the public as well as the record of the case.

In almost any case, any person can attend the court proceeding and request the court file. There may be some small exceptions, for example, in cases pertaining to national security, but for the most part, most court cases are public.

This includes your divorce. The three issues in any divorce are the children; the assets and liabilities of the marriage; and the income streams of both parents.  Those embarrassing texts, they come into evidence. The amount of debt you have, that comes into evidence. Your income? In a divorce, this becomes public record. The fact of your marriage, that children are born of that marriage and the termination of a marriage are all public events.

All of this information potentially comes into evidence in open court. The court makes a audio record of the testimony (in the event the case is taken up on appeal). The record of your divorce proceeding is available to the public.

There are two ways to ensure a privacy in a divorce proceeding.

The first is to conduct the divorce privately. Retain a mediator or arbitrator to make the decisions for you and your spouse. (Similarly, if you and your spouse agree on everything, then there will not be a court record, except for the Judgment.)

Divorce mediations are conducted in private. Only the participants and the mediator are invited to attend. Information about debts, income and assets are not testified to in open courts. Intimate, embarrassing texts are not read out loud to a judge. Neither parent has to testify about the worst moments in the relationship for the world to hear. The courts truly are not the best place to get divorced.

Every divorce ends with a Judgment of Dissolution, the Divorce Decree. The Judgment needs to identify with some specificity the parties income, debts and assets. As a general rule, for example, not enough information is given to identify specific assets, like a bank account, by account number. But, often, the judgment will show a litigants assets, debts and income.

It should be noted that in Oregon, it has only been about ten years or so, that birthdays and social security numbers have been sequestered out of the public record. This information is required by the legislature and for reasons I do not know. Only people with a specific need to know can assess this limited information.

Some litigants prefer to create a Marriage Settlement Agreement, an MSA. The MSA will contain the same information as the Judgment, however, the MSA can remain private. The judgment still needs to be filed and signed by a judge. The Judgment is the document which actually divorces a couple. However, the MSA can list out the specific terms of the divorce, and only the parties have access to this document. The MSA is signed by both husband and wife, and they can decide what the enforcement remedies will be in the event of a breach, for example, non-payment of a spousal support.

In conclusion, your divorce creates a public record which any one can access. Some privacy can be maintained by settling your case and not going to trial. However, the divorce decree still will contain sensitive information. Divorce mediation will not create a public record, but still ends in a judgment. For complete privacy, the divorce mediator can create a Marriage Settlement Agreement which both parties sign, but is not filed with the court. This will keep the terms of the divorce private, though the fact of the divorce is always subject to public disclosure.