On top of all the emotional and psychological angst that the divorce process causes, a client’s fear that confidentiality and privacy will be “breached” no doubt ranks as one of the highest concerns of parties who go through the litigation process. That we as practitioners are strictly bound by attorney-client privilege by the Rules of Professional Conduct may not be comforting to parties, especially those with significant and complicated estates or who hold high profile positions in the community. Fortunately, entrusting your case with attorneys well experienced with sensitive financial matters and even celebrity status can truly be the first step toward maintaining integrity and respecting the privacy of oneself and one’s family.
So what is a litigant to do if he or she desires a divorce but not the unwelcome attention that it may garner?
-Wait to file. It may benefit a client to wait to file a petition for dissolution of marriage (the initial complaint) until a comprehensive settlement agreement is reached. Simply stated, once a case is filed, it is part of the public record. If litigants (and their attorneys) are like minded and desire the least amount of attention to their case, less time in the “limelight” can be achieved by considering timing.
-Strongly consider incorporating your agreements into the Judgment for Dissolution of Marriage (the order that dissolves your marriage) “by reference only.” That agreements are not part of the physical court file does not negate the legality or enforceability of their terms. Provided the agreements are not unconscionable, the Court will make them part of the Judgment for Dissolution of Marriage even if not attached. To ensure the authenticity of the Agreements, have the Judge sign those documents not to be made part of the court file in the event disputes later arise and the Agreements must be referenced.
-Be selective in your selection of counsel. Attorneys who run to the media are not looking out for the interest of their clients, or their clients’ families. Retain counsel, like Beermann, whose priority is not sound bites with the media, but fair resolution for their clients.
Kathryn L. Mickelson, Family Law Partner