Question: My husband and I were married for nearly 20 years. It was a bad marriage, right from the beginning. Within a few years, we both began having affairs, both before and after our children, now ages 13 and 11, were born. We finally decided to divorce, and it was a nasty and ugly scene, with each of us saying terrible things about the other. We finally settled our case, but not before all of the dirt about his affairs and mine had been spread all over the courthouse and all over town, for that matter. Our children even heard stories about us from their friends at school.

In addition to the lurid stories that came out during the proceedings , we have private financial issues that are included in the disclosures made in various filings. My husband and I want the records sealed, but our lawyers tell us it might not be that easy and will probably require another hearing. Why is it that two adults cannot agree to make our dirty laundry and our finances off-limits to the public at large. We believe strongly that our business is none of theirs.

Answer: The courts of the United States and all of its states are open. This is based upon the protections of the First Amendment to the U.S. Constitution and the various state constitutions that give the general public the right to search for and read court records.

On the other hand, when it comes to sensitive family and financial matters as you describe, folks such as you and your husband want protection from public access based upon your and your children’s desire for privacy.

Therefore, the states that have addressed this thorny problem, either by legislation or court rule, require the judge to engage in a balancing test that protects both the public’s right to access court records and the litigants’ privacy concerns. This is done through a process tailored to seal only those documents that contain truly private or proprietary information.

Some of the factors to be considered by the court in matrimonial actions include whether the lawsuit has significant public significance; the asserted harm to the litigants should there be disclosure; whether there are alternate methods of providing the same protection; whether the public interest is served by sealing the documents; whether the documents contain information that could expose private financial issues and cause harm to the parties; and with regard to children’s issues, whether the information in the court file adversely affects the interests of the children. In some states, motions can be made to seal certain sensitive documents during the proceedings.

Getting files sealed today is far more complicated than it was even 10 or 15 years ago. We suggest that you and your husband cover these issues with your lawyers and see what parts of your files can be sealed.

SoloComment: With identity theft running rampant today, we do not believe it is a good idea for public court documents to contain either Social Security or driver’s license numbers. Why? Because these can be the gateway to economic devastation. While they may be necessary for such things as child support enforcement, these identifiers should not be made matters of public record. Also, some health insurance cards contain Social Security numbers. In our view, this is not a good idea, because more and more con men are figuring this out.