One question I frequently get asked is how public will my divorce be? While you won’t hear about most divorces in the media, the majority of the information filed with the Clerk of Court will be public information. While the attorney’s file is certainly not public, lots of information surrounding a divorce will be filed with the Clerk of Court, including affidavits which are required at a Temporary Hearing.
Public vs. Private Info in SC Divorce Cases
What is considered public? Unfortunately, most parts of a divorce are public. The public portion of a divorce proceeding would include court filings, motions, pleadings, court orders, a final divorce decree, and settlement agreements. Divorce is often a highly contentious, stressful time for people. It is unfortunate that this sensitive time in your life will be public record, but that is the nature of our judicial process.
Why are divorces public? Courts are designed to be open and accessible to all. In fact, Article I, Section 9 of the South Carolina Constitution requires that all courts of this state be public. A divorce is a public proceeding. If certain types of cases were shielded from public view just to save embarrassment, we would not have a transparent system.
How to Find Out About a Divorce Case
People often ask if everyone will know about their divorce. In short, most likely not. Anyone who has interest in the case can visit the Court and request the court files. The key here is that they must already know that there is a file on your divorce. Someone who doesn’t already know about your case, likely won’t know to go ask for your divorce file.
Some counties have public index systems where you can type in names of people you know and see if the name pops up. Some counties also post their dockets online. Other than those circumstances, someone would need to know about the divorce to begin with. It is not necessary that the requesting person be a party to the case or be somehow related to the case; it can be anyone as long as they know to go looking. Certainly there are other ways to find out if a person is going through a divorce, and a trip to the courthouse could confirm that.
Making a Divorce Private
Under certain circumstances, a divorce case can be kept private or “sealed”. This is not frequently done; only in very rare cases will the judge order a case to be sealed.
Why Some Divorces are “Sealed,” or Private
Sealed cases usually involve highly sensitive information like proprietary business information or allegations of sexual abuse towards children. Reasons to seal a case include protection of victims of domestic violence, protection of proprietary business information, or prevention of exposure of false allegations of false allegations which could result in libel.
Although there are few cases that are sealed in comparison to the number of divorce cases there actually are, there are legitimate reasons to seal a case. Although cases will not be sealed just because someone wants them sealed, there are certainly appropriate situations that warrant the sealing of a divorce case. Even if your divorce case is not sealed, people in the community rarely take the time to go down to the Clerk of Court to browse through random divorce files. Of course, there are certain situations in which a divorce case is of particular interest to someone, but generally people are not at the Clerk’s office browsing divorce files.
Getting Your SC Divorce Case Sealed
The Court does not automatically seal your divorce for you. First, you must file a Motion to Seal requesting the Clerk’s file to be sealed. Then a judge will make this determination by weighing the damage to the requesting party if the case is public and the goal of keeping courts transparent.
The factors a judge will consider include:
- the need to ensure a fair trial;
- the need for witness cooperation;
- the reliance on the parties upon expectations of confidentiality;
- the public or professional significance of the lawsuit;
- the perceived harm to the parties from disclosure;
- why alternatives other than sealing the documents are not available to protect legitimate private interests; and
- why the public interest, including, but not limited to, the public health and safety, is best served by sealing the documents.
In addition to these factors, a Family Court Judge will also consider whether the file 1) contains material which could adversely affect the parties and/or 2) relate to sensitive custody issues, and shall specifically balance the special interests of the child or children involved in the family court matter.
The burden of proving that the private interest of sealing the record outweighs the public interest of transparency lies with the party making the motion. Sometimes, all or only a portion of the case will be sealed. Even portions of documents can be sealed. The Motion to Seal must identify which specific portions of the case are being requested to be sealed.
Worried about your SC divorce being public?
If you believe your divorce case should be sealed, it is best to let your attorney know that immediately. Sealing a court case does not mean that the Clerk of Court has to track down everyone who already has a copy. It simply means that the public can no longer view the file. Protecting sensitive information is important to do from the outset.
If you want to have your divorce case sealed, you should seek the assistance of a South Carolina family court attorney. Divorce litigation can be tricky by itself. Adding a Motion to Seal can add complexity to the situation.
Contact us to see how we can help.
Questions? Speak With Jennilee.