Protecting Privacy During Divorce

privacy_200393443-001Going through a divorce is difficult on many levels. Your client may feel like his or her personal life is laid bare for everyone to see. As an attorney, you can’t protect your client from the emotional exposure involved in divorce, but you can take measures to protect your client’s financial laundry from being publicly aired.

Actress Zooey Deschanel, who plays Jess on TV’s The New Girl, experienced the lack of privacy that often comes along with divorce first hand when her financial information was reportedly attached to her divorce filing. But she didn’t have to be so exposed.

Here are seven things you can do to protect your client’s sensitive financial information from reaching the public view:

  1. Redact Social Security numbers from documents filed with the court, as permitted by Fam C §2024.5.
  2. Never include a complete bank account number in a judgment or court order. Use the last few digits of the account number only, so that the court and parties may identify it.
  3. Never file a tax return in a court file; instead, if the tax return is needed for a court hearing, bring it to court, but make sure it is returned at the end of the proceeding.
  4. If the court appoints a financial expert or a forensic accountant (Evid C §730) to value a community property business and prepare a report for the court, obtain a court order from the court or by stipulation that the report will be sealed.
  5. Use a stipulated judgment or marital settlement agreement that can describe the division of specific property in a general way and refer to specific details in additional documentation that won’t be filed with the court. This additional documentation may be kept by the parties or their attorneys, just in case a future dispute arises or enforcement is required.
  6. If the parties have already agreed to the division of specific financial assets and properties, the petition, judgment, and additional case file documents need only generally refer to the documents that are already in the possession of each spouse.
  7. Take all reasonable steps to keep sensitive financial information out of the court record. If necessary, bifurcate the financial issues and attempt to resolve them through mediation, or another ADR method. (Keep in mind that under Evid C §1120(a), mediation confidentiality statutes do not necessarily make inadmissable evidence that is otherwise discoverable outside mediation.) Also, as courts implement “family centered case resolution,” consider requesting a “family centered case resolution conference” to “[provide] financial and property settlement opportunities to the parties and their attorneys with judicial officers or qualified attorney settlement officers.” See Cal Rules of Ct 5.83(c)(2), (c)(6)(D), (d), (g).

For everything you need to know to seal family court records that include financial information, turn to CEB’s Family Law Financial Discovery, chaps, 5, 19. Also check out CEB’s Practice Under the California Family Code: Dissolution, Legal Separation, Nullity, chap 13 on discovery. CEB also has the program Financial Discovery in Family Law Cases available On Demand.

You may also be interested in these CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

6 Responses

  1. HI, Thank you for the handy outline, but I have a question concerning Item 7 and the suggestion to have financial affairs resolved outside of court by a mediator. Marriage of Kieturakis (sp.?) decided last year that a trial could hear and admit evidence concerning financial documents disclosed in mediation. As I understand it, the court limited admissibility of financial documents to the items that the spouse denied receiving. Nonetheless, the financial documents then came before the trial court on remand.

    Has anyone dealt with mediation documents that proceed to make their way into family law trials? If yes, any suggestions on how to safely get the documents before the judge’s eyes, but not into the permanent (and public) court file?

  2. Another helpful element that may help many couples going through a divorce is having a certified divorce analyst help them in determining how assets should be divided in a fair way.

  3. It seems to me that if an attorney included information such as social security numbers, bank accounts, etc., in the divorce filing, they should be held responsible for that breach. Here in Chicago, where I practice, sensitive information like that is not allowed to be included in document filings, in fact, not even the full names or birthdates of minors can be in court filings anymore, nor can you file Financial Disclosure Statements, you only present them to the other side and only file a Proof of Service. You would think that a divorce attorney as expensive as the one Zooey hired would know better.

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