How to get the judge to seal your divorce case and ban the public from seeing the proceedings

Arthur Kelly vs. Ann Kelly vs. Bruce Springstein

You’ve probably heard about a man in Manmouth New Jersey a couple of years back who claimed that Bruce Springstein and his wife have had an adulterous affair after meeting at a gym. The man’s name is Arthur Kelly and his wife’s name is Ann Kelly. Well, Ann’s lawyer moved to have the file “sealed” and to block the public from what would otherwise be a public proceeding so as to stop a “public circus” from occurring.

Can she do that, you ask? Well, she can certainly ask. Why not? But it doesn’t mean that the motion will be granted. And in that case, I do not believe it was granted. The case remained unsealed.

But is it possible to seal a divorce case? Yes, normally to get a file sealed one has to proceed by motion or order to show cause. It is in the judge’s discretion however whether to grant the motion or not. But you can always appeal the judge by going to the Appellate Division and getting a stay pending the outcome. Good Luck with that though. The Appellate Division hardly ever overrides the trial court on these issues….

What are the factors the court considers in deciding whether or not to grant a motion requesting a seal? Well, it’s a balancing act between the right to privacy of the litigants and the First Amendment rights of Americans to know what is going on in the nation’s courts and to have open access (with some limitations under some circumstances) to all court room proceedings.

For example, there was another case years back involving billionaire Ron Burkle. Here is what Forbes Magazine said about billionaire Ron Burkle’s messy divorce a couple of years ago, and Mr. Burkle’s request for having the files sealed:

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.

So it is really a complex set of balancing of equities that goes on with that. Chances are, you are never going to be able to totally seal your files. You can have “redacted” versions of your information put on file, such as your social security number, the names of your children, partial account numbers, things like that. But chances are, some version of your privacy will be open to public scrutiny so long as you and your spouse insist on going the court route with your divorce.

It is always better to settle out of court. Try a collaborative divorce if you can. It is infinitely better to have air tight prenups that….well, better not to get married in the first place (I hate to say it but you just never know! Even with prenups what is to stop a spouse from publicly challenging it?) even if that sounds really jaded and fatalistic.

At the same time, we are human and we will fall in love and that is not going to be something that even the most control-freakish amongst us (except for some very exceptional cat lovers I know)  can totally avoid. So, the next best thing is to be grown up about it, and settle privately the way Madonna and Guy did and avoid the circus and all this “sealing of case” business.

YOUR MARRIAGE AND DIVORCE IS NOBODY’S BUSINESS REALLY.

But if you insist on going to court and not settling, and having trials? You have to reasonably expect a public circus. You can’t blame the system. It’s you and your spouse who is doing this to yourselves. And it is not reasonable to expect it is going to be sealed either. Chances are, as I said, it won’t be.

Besides, the same Forbes article goes on to say this:

Meanwhile, in late 2005, in The Associated Press v. the State of New Hampshire, the justices held that sealing records in a divorce case requires an analysis of the two-part “experience and logic test” annunciated by the U.S. Supreme Court in 1986. First, the court will determine “whether the place and process have historically been open to the press and general public,” and if so, “whether public access plays a significant positive role in the functioning of the particular process in question.” If both answers are “yes,” your chances for sealing a file are not good.

 

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