Sealing the Record of Your New Jersey Divorce Case

1. Can I seal the record of my divorce case?

In most cases, the records of your divorce case will not be sealed. Pursuant to New Jersey Court Rule 1:2-1, all trials, hearings of motions and other applications, pretrial conferences, arraignments, sentencing conferences and appeals shall be conducted in open court, unless otherwise provided by rule or statute.

Even though there is a presumption that allows the public to have access to court records, that right is not absolute. A family court judge has the power to seal court records when the interests of privacy outweigh the public right’s to know. A divorce litigant may make an application to the court to seal a file or any part of it. Pursuant to Rule 5:3-2(b), the court, upon a demonstration of “good cause” and notice to all parties, shall have the authority to order that a family part file, or any portion thereof, be sealed. The court must have “good cause” to seal any part of a divorce file, and must balance the rights of the public interest against the rights of the parties.

2. How much of my private life will become a public record?

With all of the celebrity divorces in the news lately and all the dirty details of their private lives being dragged out for everyone to see, it leaves one wondering: Is anyone entitled to privacy when it comes to a divorce? Many clients come to my office knowing that their divorce will be less than amicable. They also know their soon-to-be-ex will most likely be dishing out the dirt of their relationship. Consequently, many clients worry that their private information will be made public through court documents. They want to know if there is any way to get their divorce records sealed.

In New Jersey, all divorce and family law documents and proceedings are accessible to the public. However, a litigant can file an application requesting that the court seal certain documents. It is important to understand that having divorce records sealed is not necessarily automatically granted, as there is a competing public right to have access to court records and proceedings. Nevertheless, it never hurts to ask the court.

3. What grounds can I raise to convince the court to seal my divorce case?

The public’s right to know what happens in the courthouses of the United Sates is firmly established. The U.S. Supreme Court has held that the First Amendment guarantees public access to the federal courts, “to ensure that court proceedings are conducted fairly and impartially and that the judicial process is open and accountable.” This right extends to state courts in both criminal and civil matters, including divorce cases. But while the public generally has a right to attend public trials and to review all documents or pleadings upon which a court relies in making a decision, those rights can be limited when a litigant’s right to privacy exceeds the public’s right to know.

In New Jersey, the courts use a balancing test to assess whether to seal or not to seal a divorce case. Divorce court records (i.e., materials used during a trial or submitted to the court as a basis for its decision in a case) are presumed to be open to the public unless those records must remain confidential under existing law (adoption records, sexual crime victim identities, and the like). A person can attempt to prove that his need for privacy outweighs the public’s right to see justice in action. Plus, he must show that the proposed sealing is narrowly tailored, and that there are no less restrictive means to achieve the overriding interest.

When a divorce is imminent or ongoing, most people today seek advice on how to protect their personal and financial interests. While in most cases that means seeing an attorney to learn what you can expect to get or give under the law and facts of a particular case, in many instances the first trip to the attorney includes a request to keep the proceedings private, if possible.

There are safeguards that the court uses to protect the personal information of litigants. The New Jersey judiciary allows litigants or their attorneys to use only the last four digits of Social Security numbers, financial account numbers, driver’s license numbers, and the like in filed court records. The real numbers are kept safe and offline. Children can be identified by initials only, and instead of providing full birth dates, only years of birth are required.   

4. What are some important cases that have addressed the sealing of divorce court records?

A. Black v. Walker, 295 N.J. Super. 244 (App. Div. 1996).

Here, the court noted that all names used in the opinion were fictitious in order to protect the privacy of the parties.

B. Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992).
 
Here, the court noted that the names of the parties in this domestic violence action were fictitious, so as to protect the privacy of the complainant and the children.

C. Smith v. Smith, 379 N.J. Super 447 (Ch. Div. 2005).

A very recent case is Smith v. Smith, 379 N.J. Super. 447 (Ch. Div. 2005). Here, when the parties separated, the plaintiff sought custody of the two children who were three and five years of age. The primary issue at trial was the plaintiff’s desire to relocate to South Carolina. In South Carolina, the plaintiff’s father was a wealthy businessman and offered his daughter a job there.

The defendant-father opposed the application to relocate to South Carolina. Moreover, the defendant asserted that the plaintiff and her father abused alcohol. The defendant alleged that the excessive alcohol consumption placed the children’s care at risk and set a poor example. The defendant also retained an expert on alcohol usage who evaluated the drinking habits of the plaintiff’s parents and was expected to testify on his behalf. The plaintiff strenuously denied that she or her parents abused alcohol.

Right before the start of trial, the plaintiff filed a motion to seal the case file. The plaintiff submitted that the defendant’s allegations were baseless and could be very damaging to her family’s reputation. The trial judge denied the application. The court noted that New Jersey has a “long and venerable tradition” of being open to the public. Moreover, the court noted that what transpires in a public courtroom is public property. The court noted that it could not find any published opinion since 1992 that found “good cause” to seal a New Jersey divorce proceeding. Therefore, the court held that the “mere embarrassment of the parties connected to a divorce action,” without a showing of a detrimental impact upon the minor children, was insufficient to seal the divorce file. In conclusion, the Smith court held that the strong presumption of open judicial proceedings outweighed the plaintiff’s concerns for privacy.

D. Stern v. Stern, 66 N.J. 340 (1975).

Here, the court allowed the use of initials to conceal the true identity of the litigants. The New Jersey Supreme Court held that while this procedure may serve a legitimate purpose where the interests of children are at issue, concealing the record on the basis that one of the parties was a prominent attorney was an insufficient reason. 66 N.J. at 342.