The title of this blog entry may seem silly but it isn’t. Last week I tweeted the suggestion that those who are divorced might want to check what personal information of theirs is available for free in their public courthouse divorce file. I wrote that because I visited a random courthouse last week and read through a dozen or so divorce files to learn what part mediations have played in that jurisdiction. There were no mediations referenced in my random sample.
What I found though was full tax returns with visible social security numbers for both parents and two children in one case. SSNs for just the husband and wife in another. There were full investment account numbers in other related records. More than enough information for an identify thief to cause harm. Mediation would keep that kind of information out of the public record.
Worse, one divorce file had some spicey allegations about sexually transmitted disease and adultery. The creative attorney filed and served discovery requests (interrogatories, request for production of documents, and request for admissions) with the complaint so they were in the file. Discovery requests are not normally filed with the court. They often get filed if they are pertinent to a motion or other proceeding though. And, once filed, they are open to inspection. So, when the attorney asked the spouse to admit that the spouse committed adultery, contracted an STD and transmitted it to the other spouse without telling the other, that became part of the public record. Mediation would keep these allegations confidential.
The confidentiality that mediation offers is one of its key attributes. There are provisions for filing confidential materials in divorce files, but they are often disregarded or inadvertently overlooked. And, as noted, discovery responses often have to be submitted to the court as well.
The really sad part of the situation of the file with the information on STDs is that the couple later reconciled. They did not conclude the divorce. I doubt their friends and family are aware of these allegations. This information is still in the public record though. It will be publicly available unless they take specific steps to have the file sealed. Usually, once documents are filed with the court they cannot be removed. So, if I sound like a zealot for confidential mediations, I have made my point.
Rhonda Smiley, Esq.
Mediators To Go