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.

 

Read more at: http://www.huffingtonpost.com/fred-silberberg/my-divorce-is-none-of-you_b_277705.html 

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.

Read more at: http://www.divorcesaloon.com/the-no-fault-divorce-revisited-is-your-divorce-anyone-elses-business

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.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.