Fred Silberberg of the Huffington Post blog posits that a divorce proceeding ought to be a private family matter not subject to open public view. He says in New York divorce proceedings are private such that the public cannot view the proceedings. However, he says, California has open courts such that the public has full access to the proceedings.
When one enters into a marriage or a domestic partnership, they do it privately. While the parties get a marriage license, no one is privy to whatever agreements the parties may reach regarding refinances, domestic arrangements, childcare arrangements and the like. In fact, the law is even written in a manner to protect the confidentiality of the marital relationship. For example, a spouse can refuse to testify against his or her spouse in a legal proceeding, and the communications between the spouses are generally held to be confidential and not subject to disclosure. Even Federal law addresses this to some extent in keeping tax return information confidential. Yet, if parties end up in divorce court in some states, suddenly there is no confidentiality whatsoever. And divorces, being the nasty animals that they often are, dredge up all kinds of allegations and personal information. Suddenly, the dirty little secrets that one spouse confided in the other become the public disclosures that the entire world has a right to know.
However, at Divorce Saloon, the author posts that she has first-hand witnessed that divorce proceedings in New York are not closed to the public.
I think that is incorrect. I have never seen a judge toss anyone from a courtroom just because the civil action being heard is a “Divorce.” The general public can totally sit in on your divorce and hear all your business if they choose, Mr. Silberberg. Both in New York and California.
Now. I don’t think they can get a copy of the transcripts. Nor can they view the file unless they are parties to the action or the attorneys. But they can sit in in the courtroom and hear your business. Sure, the judge always has discretion if she will seal a case off from the public. But that is likely to meet with First Amendment challenges if it is a newsworthy case. So I think you are wrong on what you said in your article, Sir. We can argue about it, but I think, ultimately, you are incorrect.
But, the blogger at Divorce Saloon comments that, even though New York is not as depicted, she agrees that divorce proceedings should be private.
In Texas, divorce proceedings, like other civil matters, are generally open to the public. Courts have the discretion in certain circumstances to close the courtroom and seal a file. In my experience, judges are more likely to grant a request to close the courtroom and seal the file when there are sensitive matters involving children involved. Both authors talk about "family business" as being a reason to keep such matters private, but it is doubtful that a Texas court would find that to be enough. It is also doubtful that a Texas judge would find it to be enough that the divorce matter involves financial business of the spouses.
Although the Texas media does not often report on divorce proceedings, the nature of our court system requires that such proceedings be open to the public. Because we have elected judges, the public should be able to assess a judge’s performance in any such proceedings. To close the courts for certain cases would transform the court system we have into a semi-administrative system that works against our traditional notions of justice. Spouses, if they do not want their matters tried in an open court proceeding, can (obviously) settle their matters outside of court such that their laundry is not aired publicly except to the extent that there are documents contained in a file that may be viewed by the public. Or, if a trial — airing of dirty laundry — becomes necessary, the spouses always have the option of hiring a private judge to conduct the trial in a private session. The parties would bear the cost of such special judge, but that would be a prioritization of their privacy based on the cost of doing it (cost/benefit analysis).
Hat tip to Divorce Saloon blog for pointing me to this article.