My Divorce is a Private Matter – Can the Court Seal My Records?

Typically, all court records are readily available to the public, except for cases involving minors. Cases involving divorce, paternity, and child support are available to the public and not sealed absent significant circumstances.  Depending on the county, any person can view court records online, or obtain court records from the county clerk’s office. The Illinois Clerk of Courts Act states: “All records, dockets and books required by law to be kept by such clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in different clerks’ offices and shall have the right to take memoranda and abstracts thereof.

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Because divorce cases are so personal and involve many situations a person considers to be private, many clients involved in a divorce case request that their case be sealed so that the records are not available to the public.  Unfortunately, it is not that easy, because the public interest favors the freedom of access of information. When faced with a compelling interest, a Court has the discretion to restrict or impound records provided the interest asserted for restricting access outweighs those in support of access.  Doe v. Carlson.  Illinois courts have held that a Court may seal records if they are highly detrimental to minor, family, or financial privacy interests. A.P. v. M.E.E.  In order to succeed on a motion to seal, an individual must show a compelling interest that favors restricted access, and propose a protective order is drafted in a way that is least restrictive to the public’s interest. Marriage of Johnson.

 

Alleging in a motion to seal that the case should be sealed or impounded due to “financial interests” may not be sufficient to file under seal, but it is typically within the judge’s discretion. For example, many individuals who work in the financial services industry may ask the Court that his or her case be filed under seal due to personal financial matters. Ironically, many financial planners, accountants, and wealth advisors are in an embarrassing amount of debt, sometimes near the brink of bankruptcy.  If their employers or clients were to find out through public records, it could result in job loss and loss of clients.  However, those allegations alone may not be compelling enough to outweigh the public’s interest in having open access to court records.

 

Generally, embarrassment alone is an insufficient basis to seal records.  Remember Jack Ryan’s failed 2004 U.S. senate campaign?

 

A litigant may also request that only part of a file be sealed.  In such a case, judges often take into consideration the burden it will be on the clerk to seal some but not at all of a file. It also leaves a lot of room for error given the heavy volume of the Clerk’s work.

 

There are some limited ways to maintain privacy without asking the court to seal records or dealing with the strictures of the Illinois Clerk of Courts Act.  For example, a marital settlement agreement is a document that generally contains detailed lists of the parties personal financial information such as the amount equity  the parties’ home, the names of the financial institutions where they hold assets, the value of their bank accounts, retirement accounts, investment accounts, stocks, credit card debts and the like. Generally, a marital settlement agreement is attached to a final judgment of dissolution of marriage, which is available to the public and filed.

 

However, parties may request that the court incorporate the marital settlement agreement into a judgment of dissolution of marriage by reference only.  That means that settlement agreement would not be attached to the judgment, and would not be filed with the court.

 

Another option is to be identify assets and individuals in court filings in a sufficiently vague manner so that the public cannot easily ascertain private information, but with sufficient specificity that the court can.  For example, a legal document may refer to “bank accounts titled jointly” without disclosing the name of the particular financial institutions and account balances.  This approach is not without risk, however.  In the event of later litigation to enforce a court order, for example, in may become necessary for the court to determine with specificity what was meant in a previously filed order.  If the order is too vague, it may frustrate efforts to enforce it later.

 

If you have any questions regarding sealing your court file, please contact one of our experienced attorneys to set up a free consultation.